We have been running into this lately. So let’s begin.
An easement is an interest in the land of another which entitles the owner of such
interest to a limited use or enjoyment of the land in which the interest exists. Ok, and this means?
In other words the right to use the real property of another
without possessing it. The essential qualities of an easement
are:
1. An interest in land and usually created by grant or
agreement and generally must be transferred and used
subject to the rules of real property.
2. It is an interest in the land of another.
3. It is a limited and non-possessory interest in land. The
owner of an easement has a legal right to maintain the
easement and a legal right of access across the
easement.
CREATION OF EASEMENTS
1. Express grant – a standard grant deed is used
2. Express reservation – the new easement is reserved
in the legal description of a deed conveying a fee
interest.
3. Condemnation – an easement may be taken under
the right of eminent domain for public use
(Example: a public street).
4. Dedication – a common way of creating public
easements with subdivision maps but recorded
instruments may also be used (Example: irrevocable
offers to dedicate).
TYPES OF EASEMENTS
1. Appurtenant Easement
The right in another’s land which is created to benefit the
easement holder in his use of particular land owned by him.
(Example: A driveway easement over the adjoining property).
The essential qualities of an appurtenant easement are:
A. The easement is attached to the land of the owner of
the easement.
B. It passes with transfers of the land as an appurtenance,
whether by voluntary conveyance or transfer by
operation of law.
C. It cannot exist separate and apart. For it to exist, there
must be at least two parcels of land in separate
ownership:
1.a. Dominant tenement – the land to which the
easement is attached or the land that is benefited
2.a. Servient tenement – the land burdened by the
easement.
2. Easement in Gross
A right in another’s property which is not created for
the benefit of any land owned by the easement holder.
A. It is not attached to any particular land.
B. It is a personal right or a right attached to the person of the easement holder.
C. There is only a servient tenement – the land burdened by the easement. Since there is no dominant tenement, an
easement in gross cannot pass as an appurtenance to land. It must be expressly transferred.
Appurtenant or In Gross?
If the instrument that creates the easement fails to state the type of easement, the following general rule applies:
It is not essential that the dominant tenement be described or mentioned in the grant. The nature of the right and interest of
the parties mainly determine whether the easement is appurtenant or in gross.
Insuring Appurtenant Easements
The property burdened by the easement must also be searched to insure an appurtenant easement. The following matters
must be considered before insuring the easement:
A. Delinquent property taxes – any taxes that became a lien prior to the creation of the easement.
B. Trust Deeds – any trust deeds or other liens that recorded prior to the creation of the easement.
C. General Index Matters – any matters that recorded prior to the creation of the easement.
A foreclosure of any of the above matters that have priority over the easement could wipe it out and cause expensive claims.
Extinguishment of Easements
Once created, easements endure for an unlimited time unless terminated through particular events or acts.
A. Express release – a quitclaim deed can be used to extinguish either an appurtenant or in gross easement.
B. Merger – An easement is extinguished by merger when the same person becomes the owner of the easement and the
fee title to the servient tenement. The fundamental rule is a person cannot have an easement over his own property.
