Property is incredibly expensive. We have represented buyers and sellers for real property purchases throughout the Bay Area, including Santa Clara County, San Mateo County, and Alameda County, who want to ensure that everything is done properly and that the buyer has a comprehensive understanding of what they are acquiring.  Often buyers, before consulting with us, will review a preliminary title report and see the magic word – “easement.” What exactly is an easement?

Using legal jargon, an easement is a non-possessory property right permitting the holder to make some use of land.  More simply put, it is a right that someone can obtain to use another’s land and cannot be unilaterally revoked by the property owner who has relinquished the right.  Some typical types of easement rights include permission to drive through a property (e.g. shared use of a driveway), install and maintain utility lines, view the ocean, and use a trail or the entire property for recreation (e.g. hunting or fishing).  Subsequent property owners are often surprised and disappointed that they are bound by easement agreements they never signed.  They are bound because easements “run with the land.”

When reviewing an easement, it is imperative to determine the extent of the easement rights.  If someone else possesses the easement rights across your property (i.e. they are the dominant tenant) or if you possess the rights over another’s property (i.e. they are the servient tenant), you will want to know whether the easement rights will terminate at a particular time (e.g. expire after five years) or have been extinguished (e.g. by foreclosure), the exact location of the easement rights (this may require you to retain a surveyor), the scope (e.g. amount of times someone can cross the property in a given month, the number of people that can access, what months access is allowed), who will be responsible for maintenance costs (e.g. repairs for shared driveway), and whether any legal protections are provided (e.g. indemnification in case of a car accident on shared driveway).

We frequently see disputes concerning the overuse of an easement, easements that are not specific enough in terms of location or use, whether an easement has been abandoned due to lack of use, and whether easement rights have potentially been acquired without the benefit of a written agreement (e.g. prescriptive easement, equitable easement).  These disputes can be very expensive both financially and emotionally.  They can be costly because easement agreements rarely have an attorneys’ fee provision, which usually means both sides will have to fund their side of the dispute without any possibility of recovering their fees.  The emotional toll also should not be overlooked as these disputes are typically with neighbors and that can place a strain on day-to-day interactions with those individuals.

Obviously, fully understanding the easement agreement is of paramount importance.  It is only with this understanding that a buyer can properly determine what questions need to be posed to the seller and, potentially, the other party to the easement agreement.  Depending on what is learned through these inquiries, the easement rights might even be lost, incredibly burdensome, or woefully insufficient.

If you have any question about easements, or any other real estate-related issue, please contact us at 408-290-8228.  We look forward to assisting you.

DISCLAIMER: The information presented in this article is for informational purposes only, and should not be construed as legal advice.  There is no intent to create an attorney-client privilege or relationship.  Any content excerpted from this article must contain this disclaimer.  The information contained in this article is not confidential, and is not intended to be a solicitation.