Trespasser may be granted legal use of your property

Not too long ago, a neighbor asked if I knew where our sewerand storm drains are located. He apparently wants to adjust the drainage on hisproperty to drain into the public storm sewer drain, which I knew adjoins ourlots.

After that brief conversation, I checked the legaldescription for my property. All it says is the city has a public utilityeasement along the northerly 5 feet of my property. But the easementdescription doesn’t say what underground utilities are there and exactly wherethey are located.

Purchase Bob Bruss reports online.

Further research in the public records might reveal exactlywhat underground public utility easements pass through my property and exactlywhere they are located.

WHAT IS AN EASEMENT? Virtually every property in anurban area is subject to one or more easements. An easement is the legal rightof a public or private entity to use part of a real property owner’s land.

The property that is burdened by an easement is called a”servient tenement” because the easement serves another parcel. Theproperty that benefits from the easement is called the adjoining dominanttenement.”

There is always a servient tenement. However, there is notalways an adjoining dominant tenement, such as for a public utility easement.

Private easement examples include a driveway, path or gardenarea of a neighbor’s property. Public easements include utility easements forwater, sewer, storm drain, electric lines, phone lines, gas pipes and cable TVlines.

Most easements are obtained with permission of the originalproperty owner, usually at the time a subdivision is developed. The utilityeasements are often granted free by the developer in return for the city orprivate utility bringing public services to the property.

But some easements are hostile, without the specificpermission of the property owner. To illustrate, suppose I drive over part ofyour property to reach my garage because that route is shorter and easier thanusing my steep driveway to reach the public street. Even if you tell me to stopdriving over your land, but I continue to do so for the number of yearsrequired by state law, eventually I can obtain a permanent prescriptive easementfor that purpose.

To be valid, an easement must be recorded against the titleof the property that is subject to the easement, such as a shared drivewaybetween two houses.

A very rare easement is an easement by necessity. Moststates have laws allowing creation of an easement by necessity to reach alandlocked parcel, which has no driveway or other access to a public road.

The legal theory is all land should have road access, andwhen the landlocked parcel was created the owner at that time forgot to includeaccess. A quiet title lawsuit is usually required to create an easement bynecessity over an adjoining parcel that has public road access and, at sometime in the past, had common ownership with the landlocked parcel.

THREE BASIC TYPES OF EASEMENTS.Virtually every real estate parcel is burdened by some type of easement. To bevalid, the easement must either be recorded in the public records affecting aspecific parcel, or it must be capable of being perfected into a valideasement.

1. EASEMENTS APPURTENANT BENEFIT AN ADJOINING PARCEL. Wherethere is a dominant tenement that benefits from an easement, such as for adriveway, that is an easement appurtenant. Most easements appurtenant werecreated when a subdivision was developed, or when two adjoining lots weresubdivided.

An easement appurtenant is usually recorded against bothparcels, describing the details of that easement. To be valid, an easementappurtenant must be recorded against the servient tenement title. It is usuallyalso recorded against the dominant tenement title.

When a parcel is landlocked without public road access, itis up to the owner of that parcel to prove entitlement to an easement bynecessity. If the court approves such an easement, it becomes an easementappurtenant with dominant and servient tenements.

2. EASEMENTS IN GROSS AFFECT MOST PROPERTIES.Virtually every property with electricity, phone, TV cable, public water,sewer, and storm drain utility service is subject to one or more easements ingross. Most such easements are recorded in the public records against eachproperty title affected.

An easement in gross has a servient tenement, but nodominant tenement. Sometimes such easements were not properly recorded. If theeasement in gross is obvious, such as for overhead power lines, it is hard forthe property owner to deny awareness.

But underground easements in gross, such as for water, sewerand gas pipes, might not be obvious. To avoid unexpected surprises, propertybuyers should insist on receiving an owner’s title insurance policy at the timeof purchase. If an underground easement in gross is later discovered, but itwas not disclosed in the owner’s title insurance policy, the title insurer maybe liable to the property owner for damages.

For example, suppose you decide to build a swimming pool inyour backyard. As the contractor is digging, he discovers a previouslyundisclosed city sewer through the middle of your backyard. If the city’s sewereasement was properly recorded, but the title insurer failed to discover anddisclose it, the title insurer is liable to the property owner for either thecost of moving the sewer pipe or the diminished value of the property.

3. PRESCRIPTIVE EASEMENTS REQUIRE HOSTILITY. Whensomeone uses part of your property without your permission, and without a priorrecorded easement, he or she might become entitled to permanent use of thateasement.

The legal requirements to acquire a prescriptive easementover someone’s land requires (a) open, (b) notorious (obvious), (c) hostile(without permission), and (d) continuous use of part of another’s propertywithout permission for the number of years required by state law.

Payment of property taxes is not required, as it is toobtain title by adverse possession.

California has the shortest prescriptive easement period,only five years. But Texas requires 30 years to acquire a prescriptiveeasement. Other states have varying time tests.

Because prescriptive easements can be shared, the hostileuse need not be exclusive. Use can be shared with the legal owner and/or otherhostile prescriptive easement claimants.After meeting the time and userequirements, a prescriptive easement acquirer can perfect the easement bybringing a quiet title lawsuit against the property’s legal owner. Anexperienced real estate attorney is usually needed to prove the prescriptiveeasement requirements.

SUMMARY: Virtually every property is burdened by or benefitsfrom an easement. Property owners should understand the legal consequences ofthose easements and where they are located. Unless properly recorded, aneasement might not be valid except when it is obvious by long continuous use,such as overhead power lines. For full easement details, please consult a localreal estate attorney.

(For more information on Bob Bruss publications, visit his
Real Estate Center

Copyright 2006 Inman News

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