Why You Need an Attorney for Easements

Certain land and living situations might allow for or necessitate an easement. Without the legal jargon, a good easement definition is an agreement that permits the usage of part of someone else's land, rather than the full ownership of that land. Property easement regulations vary from state to state, as do their reasoning, but there are some basic facts to know about them.

What Is an Easement?

Most commonly, an easement agreement is reached between neighbors. A person might want to extend their farm plots onto the property next door or, more casually, they might want to have the option to cut through their neighbor's property to reach their own land more easily. Generally, there is a dominant and servient property. The dominant property generally benefits from the use of the easement on the other property. The servient property generally serves the dominant property through the easement.

Government officials or corporations might also approach landowners for an easement to build, drill, or otherwise utilize their property. Either way, it's a legally binding agreement, and to protect both parties' rights, attorneys should be present.

What Type of Easements are There?

There are three primary types of easements:

Easement Appurtenant: A pure easement that passes to the new owner on the transfer of the dominant or servient property by purchase, gift, or inheritance.

Easement in Gross: An easement in gross is not appurtenant to any estate in the land and does not pass to the new owner on the transfer of the dominant or servient property

License: The bare authority to do a certain act or series of acts upon another's land, without possessing any estate therein; and, it being founded in personal confidence, it is not assignable, and it is gone if the owner of the land who gives the license transfers his title to another, or if either party die.

How are Easements are Created?

Since easement laws vary on a state-by-state basis, not all types apply across the country. But here are some common easements, including those in the state of California:

  • Easement by necessity. If a person impedes their neighbor's ability to access public domain, then it is "necessary" for an easement to be created. For instance, if Property Owner A cannot reach the main road because of the property lines of Owner B, then the creation of easement by necessity is warranted. Otherwise, property owner A has no other way to gain access.
  • Express easement. Expressly stated, if a property owner grants someone permission to utilize a portion of their land for any reason, then it needs to be written into law.
  • An implied easement is created if the use of a portion of land by someone other than the property owner makes sense or is abiding by the way things were done prior to the land being divided up. However, the land usage needs to make sense or be necessary or unavoidable. Otherwise, the property owner and the court of law will hold the other party accountable for improper land usage or trespassing.

Why Is it Important to Have an Attorney for an Easement?

Easements affect the value of your property, either negatively or positively. If you own a landlocked parcel, it is imperative that you have a written agreement that secures access to the landlocked parcel indefinitely to preserve the value of that property. On the other hand, you may not want to provide an indefinite roadway easement to a parcel that is not landlocked simply for convenience purposes because that would impair the use and value of your property.

As with other agreements, conditions are not always upheld, honored, or followed. If property damage ensues during an easement, a property owner might be entitled to damages. Additionally, if the agreed upon rules within the easement are no longer feasible, depending on the reason, a court of law might agree to shift or make changes. Otherwise, if an easement becomes too difficult to take on or handle, an attorney can also advocate on your behalf to terminate the easement.

Even if two neighbors have a pleasant, friendly relationship with one another, people are sometimes full of surprises. This isn't to say that every mistake is made with malice, but a neighbor might injure themselves on their neighbor's property and try to sue. The property owner might change their mind about a verbal agreement.

Several scenarios could ensue from a "handshake agreement," which, unless it falls under the implied easement category, could prove to be troublesome in the future. It's always important to have everything in writing, and an attorney can decipher what makes the most sense to include, no matter the type of easement necessary.

If you are considering a property easement, contact our team of attorneys at Krogh & Decker, LLP today. We understand that our success is linked to yours. Our team of legal experts can help advise and represent you through every property process, from acquisition to easement and beyond.


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