A few weeks ago, I received an e-mail from a son concerned about his 80-year-old mother’s home, which apparently has its driveway a few feet on a neighbor’s vacant lot. He reports his mother has owned her home about 40 years and the driveway was installed by the builder.
A new owner has purchased the adjoining vacant lot and wants the driveway moved. Can the 80-year-old homeowner be forced to move the driveway she (and her late husband) used for more than 40 years? You will soon know the answer.
Purchase Bob Bruss reports online.
ALMOST EVERY PROPERTY IS SUBJECT TO EASEMENTS. Even if your property is out in the rural “boondocks,” it probably has one or more easements affecting it. The definition of an easement is the legal right of another to use part of your property.
Examples include utility easements, above or below ground, for power lines, phone lines, water pipes, sewer pipes, gas lines, and TV cable lines. Without these free easements, most utilities would not agree to serve individual parcels.
More easement examples include the legal or implied right of individuals to pass over a neighbor’s property, such as for a driveway. Most of these easements were created when the subdivision was developed, or the lots were subdivided.
Although very rare, an easement by necessity can be created to reach a landlocked parcel that has no access to a public road. Creating such an easement usually requires legal action against an adjoining neighbor. But it creates tremendous increased property value for the owner of the landlocked parcel.
Here is a closer look at these three principal types of easements:
1–WATCH OUT FOR A PRESCRIPTIVE EASEMENT. If you use part of your neighbor’s property without permission, or someone uses part of your property even after you tell them to stop, a prescriptive easement for permanent use might arise.
That is the situation described in the first paragraph where the homeowner used her driveway over the adjoining property more than 40 years without permission.
The legal tests to acquire a prescriptive easement over the property of another owner are (a) open (obvious, not secretive), (b) notorious (clearly visible), (c) hostile (without the landowner’s consent), and (d) continuous (without interruption) for the number of years required by state law.
Payment of property taxes is not required, as it is to acquire title to the entire property by adverse possession. The minimum prescriptive easement hostile use time is just five years in California. But it is 30 years in Texas. Other states having varying time tests.
However, a prescriptive easement need not be exclusive. It can involve shared use, either with the property owner or with another prescriptive easement user.
Clearly, the homeowner in the example above meets the tests. If the new owner of the adjoining vacant lot attempts to terminate her driveway use, perhaps by erecting a fence, the legal action to perfect a prescriptive easement is called a “quiet title lawsuit.” A local real estate attorney should be consulted.
2–AN EASEMENT IN GROSS ONLY INVOLVES ONE PROPERTY. The most common type of easement, affecting the largest number of properties, is the easement in gross. Only one parcel is involved. It is the property subject to the easement.
Most easements in gross benefit public utilities or government agencies. They are usually recorded in the public records when a subdivision is created or a lot is subdivided.
If an easement in gross is not properly recorded, it might be invalid, and the property owner could force its removal or payment for continued use. However, if the easement in gross is obvious, such as overhead power lines or a public biking path, the property owner might have no legal recourse.
Because many easements in gross are underground, especially for water and sewer lines, it is extremely important for property owners to always obtain an owner’s title insurance policy at the time of property acquisition.
When the title policy fails to disclose a properly recorded underground easement in gross, the title insurer can be required to pay either (a) the cost of moving the underground easement or (b) the diminished value of the property.
To illustrate, suppose you want to construct a swimming pool but you discover a city sewer easement in your backyard, which was not disclosed on your title insurance policy. Turn the problem over to your title insurer to resolve by removal or payment.
3–EASEMENTS APPURTENANT BENEFIT AN ADJOINING PROPERTY. When an easement benefits an adjoining property, such as for a driveway or walkway, that is an easement appurtenant.
The property that benefits is called the “dominant tenement.” The parcel that is burdened by the easement appurtenant is called the “servient tenement.”
To be valid, an easement appurtenant must be properly recorded against the servient parcel that is burdened. Such an easement is also usually recorded on the title to the adjoining dominant property that benefits from the easement.
Easements appurtenant are most frequently recorded when a subdivision is created or when a large parcel is subdivided into two or more smaller lots.
For example, if a lot is subdivided into two lots but one is not located on a street or road, the rear parcel is usually called a “flag lot.” The reason is it has a driveway for an easement appurtenant over the front parcel and it looks like a flag on a parcel map.
A special variety of an easement appurtenant is called an “easement by necessity.” Such an easement can be created to reach a landlocked parcel, which does not have access to a public road.
The common law theory is all parcels should have access to a road, either directly or over an adjoining property. Sometimes property is subdivided along roads, but the result is there are millions of landlocked parcels where owners “forgot” to provide access.
Because landlocked parcels have virtually no value, an easement by necessity can usually be created over an adjoining parcel if, at sometime in the past, it had common ownership with the landlocked parcel.
Extensive title research might be required to prove past common ownership. A court “quiet title” action is usually needed to create an easement by necessity unless the adjoining owner is willing to cooperate to create the easement access.
SUMMARY. Because virtually every property is burdened by an easement, or it might benefit from an easement, property owners should understand these three types of easements.
To prevent a prescriptive easement from affecting your property, you should periodically inspect it and interrupt anyone who might attempt to acquire a prescriptive easement. However, if you don’t object to a neighbor’s use of part of your land, granting permission in writing will usually prevent a prescriptive easement from arising. For full details, please consult a local real estate attorney. (1157 WORDS).
(For more information on Bob Bruss publications, visit his
Real Estate Center).
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