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Non-Financial Encumbrances: Easements

March 19, 2018

An encumbrance is a burden upon the real property. An easement is a non-financial encumbrance upon the property where there is a right to enter or use someone else's land for a specified purpose. An easement is non-possessory, meaning that the holder of an easement can use it only for the purpose intended and may not exclude anyone else from using it.

 

Easements may be classified as appurtenant or in gross. An easement appurtenant involves a servient tenement and a dominant tenement where the servient tenement is encumbered and the dominant tenement is benefited. To put it more simply---there are two parcels involved with one being burdened at the other's benefit. Such an easement automatically goes with the sale of the dominant tenement or parcel.

 

Further, to be valid, the dominant and servient tenements of an appurtenant easement do not have to be mentioned in the deed, nor do they have to touch each other. In contrast, an easement in gross only has a servient tenement. 

 

Creating an Easement

An easement may be created in a number of ways such as by: 

  • Express grant- where it is written in the deed or in an express agreement.

  • Express reservation- where the seller of a parcel who owns adjoining land reserves an easement or right-of-way over the former property.

  •  Implied grant or reservation- where the easement's existence is obvious at the time the property is conveyed, even if there is no mention of it in the deed.

  • Necessity- created when a parcel is completely land locked and has no access.

  • Prescription- created by continuous and uninterrupted use, by a single party, for a period of time. 

 

Terminating an Easement

An easement may be terminated or extinguished in the following ways:

  • Abandonment- Abandonment is the obvious and intentional surrender of the easement.

  • Destruction of servient tenement- If the government takes the servient tenement for its use, such as in an eminent domain action, the easement is terminated.

  • Adverse possession- the owner of a servient tenement may prevent the dominant tenement from use, thus destroying the easement.

  • Merger- If the same person owns both the dominant and servient tenements, the easement is terminated.

  • Express release- signing a quitclaim deed is an example of such express release.

  • Legal proceedings- an action to quiet title against the owner would terminate the easement.

  • Estoppel- an easement may be terminated by non-use and the property owner has reason to believe that no further use is intended.

  • Excessive use- excessive use can terminate the easement.

 

If you have a boundary dispute, right of way dispute or other easement matters, please contact Aziz Legal by phone at (408) 203-4627 or email us at abid@azizlegal.com.

 

This article is merely informational and is not intended to be used as legal advice. Use of any information from this article is for general information only and does not represent personal legal or tax advice, either express or implied. Readers are encouraged to consult Aziz Legal, or another attorney, for any specific legal matters.  

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