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A Walk-Around Easements

An easement is simply the right of a person to access or use the real property of another. However, the types of easements and how an easement is created can get complicated. 

Many parcels of land, especially in a city, have an easement recorded on title. Most likely if you checked your title you would find PG&E has an easement to access your land for reading meters and servicing the utility lines. The City of Napa could have an easement as well for water service and Napa Sanitation for sewer service. These are called utility easements and fall in the category of an easement in gross.

An easement in gross benefits a particular person or entity, but who does not own an adjacent parcel of land. This easement benefits the person rather than the adjacent land and is our first category.

Years ago I sold a large parcel of land for a vineyard estate off of Mt. Veeder Road. To access this property you had to enter four other parcels of land of differing owners along the long winding road. It took attorneys over a year to be certain for this buyer that the easements needed were in place and legally sound. 

This second category of easement is called an appurtenant easement because it benefits or belongs to the land it serves. This type of easement actually stays on title even when sold.

There are several ways an easement can be created: express grant, express reservation, implied grant or implied reservation, agreement, prescription, necessity, dedication, condemnation, sale of land/property with reference to a plat, or estoppel.

The three most common ways an easement is created are in writing, by implication of law or by virtue of long use.

If a property owner were to divide his or her parcel of land in half and sell the part not needed, the seller could create a written easement on the land sold to maintain access to a creek or road for example.

An easement could be implied if a parcel of land is land-locked, that is not accessible by a road other than through another property owned by someone else. It could be implied by a way of necessity that the land-locked property has a right to access the other property. 

Lastly, an easement could be created because you have knowingly allowed someone to use your land for over five years. You could have created a prescriptive easement and this person has a right to continue such use.

Say you own a vineyard and one of your rows is on the adjacent property. If you have continued this use for over five years and the other property owner has knowledge of it, but did not request you to stop, you may have created a prescriptive easement allowing you to continue use.

Attorneys and title companies review easements and their creation as part of their practice and know this field of law in-depth. Be sure you consult your attorney if you have concerns.

Do you have a nightmare easement story you would like to share, leave it in the comment section below? 

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