News & Commentary

One of the most common types of real estate cases we litigate are easement disputes. Since easements usually involve one's personal residence or investment property, such disputes may be deeply emotional and expensive.

What is an easement?  Quite simply, an easement is the right to use another's land for a limited purpose. Commonly, neighbors are granted easements for uses, such as, driveways, fences, hedges, scenic views, and utilities. Most easements are recorded and appear on your property's title report, which is generated during a purchase and escrow.  Since it is a contractual obligation, one risk of having an easement on title is you could become a party in a future lawsuit if a dispute arises.

Whenever you're a prospective buyer of real property, always request the escrow holder to provide copies of exceptions to title and plot easements.  If documents are identified which affect the right to use property (such as easements or restrictive CC&Rs), engage legal counsel to explain your rights and obligations. Consider hiring a surveyor to confirm the easement's location.  Carefully review Seller’s disclosures to ascertain whether there is any history of discord surrounding the easement.

Most easements will be “appurtenant” to the involved properties. This is a fancy way of saying the easement permanently “runs with the land” and may not be transferred separately from the property.

So why are easements so controversial? What could possibly go wrong?

Problems oftentimes develop when: 1) the location of the easement area utilized differs from the description in the easement agreement; 2) the dominant owner “overburdens” the easement by using it in a way that unreasonably interferes with the servient owner; 3) the servient owner uses his property in a way that unreasonably interferes with the dominant owner; 4) the servient and dominant owners disagree over maintenance costs, allocations, or methods; 5) the dominant owner tries to improve the easement area contrary to the wishes of the servient owner; or, 6) the servient owner grants a similar easement to a third party over the dominant owner’s objection.

Owners who are wronged by an easement holding neighbor may be entitled to file a quiet title lawsuit and seek an injunction or temporary restraining order to prevent “irreparable harm.”  Generally, alternative dispute resolution, such as mediation, is an efficient and effective way of resolving such disagreements.

Disputes frequently arise due to poorly drafted easement agreements that should have been identified as a potential problem prior to purchase.  Engaging legal counsel to help understand or draft an easement agreement can prevent costly disputes later down the line. While the concept of an easement is relatively simple, there is nothing casual about entering into or becoming a successor party to an easement.

- The Real Estate Law Team
  Rogers Sheffield & Campbell, LLP

This article is not intended to provide legal advice. For legal advice on any of the information in this post, please use the form to the right or contact us by phone at 805-963-9721.