Shawn has a masters of public administration, JD, and a BA in political science.
Let's say you just bought a new home on a nice piece of lakeshore property. Unfortunately, you really didn't pay too much attention to the title report presented to you prior to sale and had some surprises waiting for you as you settled into your new home.
You find out that part of your neighbor's garage is sitting on your property. You note that a trail on your property is used by another neighbor from across the street as a shortcut to a public beach. This pesky neighbor also interrupts you as you are building a fence claiming that you can't do it because it will obstruct his view of lake.
You get fed up and call an attorney. After some research, he informs you that the trail, the garage and even the building restrictions claimed by your neighbor are legally valid and enforceable pursuant to easements burdening your property. If you read the title report (i.e., a report on the title to the property), you'd have known about the easements.
An easement is a nonpossessory interest permitting someone else to make a specific use of your land or preventing you from making a specific use of it. If the easement lets another enter your land to make a specific use of the land, it can be classified as an affirmative easement. A negative easement is an easement that actually allows another person to restrict the manner in which the owner can use her own land, such as prohibiting the use of a residential lot for a business activity. The examples above are a specific type of easement called an easements appurtenant.
An easement appurtenant is an easement where the right of use is attached to the land itself. The property that benefits from the easement is known as the dominant estate (or dominant tenement), while the property that is burdened by the easement is known as the servient estate (or servient tenement) because it serves the dominant estate.
Let's go back to our examples for a moment. In each of our examples, you own the servient estate while your neighbors hold the dominant estate because the easement burdens your land and benefits theirs.
The easement permitting a portion of your neighbor's garage on your property is an easement appurtenant that happens to be an affirmative easement. Your neighbor's right to use the trail along your property as a shortcut to the beach is also an easement appurtenant that is an affirmative easement. This type of easement is known as a right-of-way.
Finally, the restriction on building a fence that obstructs the view to the lake is also an appurtenant easement. However, unlike the other two easements that are affirmative, this one's a negative easement because it restricts the use of the servient estate. Basically, your neighbor has the right to restrict your use to protect his property's view of the lake.
One of the most important features of an easement appurtenant deserves closer examination. Remember that an easement appurtenant attaches to the land. In other words, an easement appurtenant is not a personal right.
Consequently, since the easement is attached to the land, it transfers with the land. The burden stays with the servient estate and the benefit stays with the dominant estate when either or both are transferred to new owners. In our example, you can't make a new owner remove the garage from your property because the easement belongs to the land, not to the previous owner of the land.
Let's review what we've learned. An easement is a nonpossessory right entitling someone other than the owner of the property to make a specific use of the property. An easement appurtenant is an easement where the right of use attaches to the parcel of property rather than the person who owns it. The property burdened by the easement is the servient estate, while the property benefited by the easement is called the dominant estate. Since an easement appurtenant is attached to the land, if the land is transferred, the easement is transferred with it.
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Real Estate Exam Prep22 chapters | 217 lessons | 16 flashcard sets
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