Easement Dispute Lawyer in Los Angeles, Orange County, San Diego, Riverside, Palm Springs, San Bernardino, Palo Alto, San Jose, Santa Barbara, Redding, Oakland, and Long Beach Serving California
Easements are an important factor to take into account when buying real property. Easement laws for both the landowner and the individual seeking the rights to use the easement have varying degrees of complexity, and can therefore be hard to follow. Carefully examining both the land title and any easement documents with the guidance of a real estate litigation attorney can help solve easement disputes in a timely and cost-effective manner.
What is an Easement?
An easement is defined as “a burden or servitude upon land, whether or not attached to other land as an incident or appurtenance, that allows the holder of the burden or servitude to do acts upon the land” Cal. Civ. Code § 887.010. In other words, an easement is a limited, non-possessory right to enter or use the real property of another for a specified purpose. Easements allow access to other properties or a resource for individuals who do not own that land. A common example of an easement would be the right to use another’s land via a road or path to reach a main road, ocean, or other important landmark.
Dominant and Servient Estates
Easements are divided into two separate categories: the dominant estate and the servient estate. The dominant estate is the land that gains the benefit of the easements and the servient estate is the one encumbered by it. For example, if landowner A enjoys an easement across landowner B’s property, then landowner A is the dominant estate and landowner B is the servient estate. Understanding the difference between dominant and servient estates is one of the first steps to better understanding easements.
Types of Easements
1. Easement Appurtenant
An easement appurtenant “runs with the land,” meaning that both the easement and the land are transferred to the new owners if either the dominant or the servient estate is sold. These types of easements are created over a servient estate so the owners of the dominant estate can access another (usually adjacent) piece of property.
2. Easement In Gross
By contrast, an easement in gross is a personal right to use the land of another. It is attached to an individual or a corporation rather than the property on which the easement exists. For example, an easement in gross allows an employee from a utility company to enter a property to provide power line maintenance.
How Are Easements Established?
In California, easements can be created in 4 ways:
1. Express grant or reservation easements
An express grant easement is created by express words, such as a contract or deed.
2. Implied grant
An implied grant is created when “the law implies that the parties intended to create or transfer an easement by a grant or reservation when there is no written document evidencing their intent and, in some cases, even when there is no oral agreement regarding the easement” Miller & Starr, 6 Cal. Real Est. (4th ed.) § 15:19.
3. Way of necessity
A easement by way of necessity comes from an implied grant or reservation that is deemed “absolutely necessary” access for the dominant tenant.
Lastly, an easement by prescription is an implied easement gained under adverse possession. Adverse possession is when a party that did not originally own the property gains use or ownership rights of that property. A prescriptive easement requires one to show that “that the easement was (1) used continuously for a period of five years, and (2) possessed in a manner that was open, notorious, and clearly visible to the owner of the burdened land and hostile and adverse to the owner” Id. § 15:29.
Contact an Easement Dispute Attorney in California Today
An experienced real estate attorney can clarify concerns you may have regarding easements. They can also help by drafting an enforceable easement. Call the experienced real estate attorneys at Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case!
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