Property owners and prospective buyers often ask about easements that impact the property they own or are interested in buying. Some easements are shown on filed maps and may also be described as part of the legal description of a grant deed or in a separate recorded document.
An easement (from the Latin for adjacent) is defined as "an interest in the land of another, entitling the easement holder to a limited use or enjoyment of that land." If the easement benefits another parcel of land, it is called an appurtenant easement. The land which is burdened by the easement is the servient tenement and the land which enjoys the use of the easement is the dominant tenement. Appurtenant easements can be for roads, water lines, scenic views or other "uses" of the servient tenement. An easement for the benefit of a particular person or persons, not another parcel of land, is called an easement in gross, such as a conservation easement to prohibit future development or a coastal access easement for public use.
Do Your Homework
What is most confusing about appurtenant easements is that the record of an easement is usually attached to the chain of title of the dominant tenement, not to the deed of the servient tenement. The buyer of a servient tenement subject to an easement should always order a preliminary title report, which should disclose the document by which a prior owner had granted the easement. Certain easements for public roads, especially from the late 1800s and the early part of the 1900s, are documented in road petitions by which the owners of the lands served by the road asked the City or County to construct it. Public roads are now typically created as part of subdivision or parcel maps.
If there is no documented basis for an easement, such as a deed, agreement or map, persons claiming an easement have to turn to the judicial system. Easements can be created by continuous and open use without the permission of the servient tenement owner (prescriptive) or by the dominant tenement being otherwise landlocked (necessity). In addition, courts will sometimes find that an easement was granted by implication depending on the circumstances of the case. Only a person wearing a black robe determines the existence of such easements which are then documented by the court's decision.
Seek Legal Help
When obtaining a grant of easement, parties are wise to use the services of a title company and an attorney because of many legal issues associated with easements. For example, consent should be obtained from persons holding liens on the servient tenement in order to avoid the loss of the easement through foreclosure of such a previously recorded lien. Other issues to be addressed include the scope of the easement and whether the persons using the easement wish to agree on how and when to maintain it (including allocation of the expense of maintenance).
While this article is not meant to contain legal advice, the author acknowledges the assistance of Paul Carey, Esquire.