When two homeowners have to share the same passageway, the property is under the encumbrance of an easement. In the first segment in our series on Encumbrances, Robert Rico defines what easements are and how they affect the tenants of a property. Subscribe here!
What is an Easement in Real Estate?
Everyone is entitled to their own property. It’s been the homeowner’s right since the creation of private land. But, when a property has an easement encumbrance, you won’t be the only person who has that right.
We’re deconstructing what an easement is and how they affect homeowners and Real Estate Agents. It’s important to know the distinction between easement and other encumbrances, because it will help you avoid an unwanted dispute or an angry homebuyer. We’re delivering some heavy real estate terminology as a light reading in this week’s breakdown of the various types of easements.
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An easement is the non-possessory interest in the another person’s land. In other words, when you utilize a person’s land for a specific reason, the mutual agreement between you and the other party is an easement. Easements are more common than you think. In fact, there are two types of easements:
Easement Appurtenant is the most common form of easement. The easement appurtenant relates to the ownership of the land. More specifically, the owners of the land and their permissions granted to the parties expressing interest in the property.
One example is a person who can only access their home if they use the landowners’ driveway. Easement Appurtenant will describes the process of the tenant, who’s house is behind the landowner’s property, using the driveway to access their home. These forms of easements exist more so in rural areas of the country than in urban settings.
Easement in Gross pertains to a specific individual being granted access to property. For example, if person A needs access through person B’s fence, to get to the local park, they would agree on an easement in gross that will meet person A’s request. Unlike the “run of the land” understanding an easement appurtenant has, the easement in gross is a verbal agreement between two parties. In other words, it’s not a rule unless both parties agree on it.
Prescriptive Easements occur when a property is being used repeatedly without the owner’s permission for a specific amount of time. In California, that time period is 5 years, however it various from state-to-state. An individual can initiate a prescriptive easement when they utilize someone else’s property long enough.
Another way of looking at a prescriptive easement is by comparing it to an easement appurtenant. The only difference is that a prescriptive easement is not written in the preliminary title report and is not permitted by the owner of the property.
Utility Easement describes the right of passage that utility personnel have when accessing a property. Whether it’s checking the utility usage of the home or accessing an electric pole in the backyard, utility companies are often granted a utility easement.
The dominant tenement describes the tenet who has the right of the passage in the easement. If Person A is using Person B’s driveway, to access their home, then Person A is the dominant tenement. This individual has the passage right within the confines of the agreement.
Servient tenement, which you might have guessed, describes the person who supplies the right of passage. Therefore, in our example, Person B is the servient tenement to Person A: the dominant tenement. Depending on the type of easement, the dominant tenement has a right over the servient tenement, without prior agreement.
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Ingress describes the process of entering a property, as in agreement with the easement. For example, if Person A is using Person B’s driveway to enter their property, they are partaking in an ingress to access their home.
Contrastingly, the process of exiting the property is called an egress. When Person A leaves the property through Person B’s driveway, they are partaking in an egress. These terms are legal lingo to help specify the rights each party has in the easement.
Preliminary Title Report
Finally, the preliminary title report is a document that lists all easements within the property. Excluding from this document is the easement in gross, which is a case-by-case agreement not set in the fine print. The preliminary title reports will present the legal rules that both parties must meet within the easement.
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