Easements

[PE_PLS]

Is there an easy way to tell if easement rights pass from one owner to the next? I have a client whom the neighbor's attorney says we can't use the drainage easement that belonged to the previous owner. If in the easement description it does not explicitly state whether or not the easement passes with the land is there a default assumption? It would seem to me that an easement passes with the land unless otherwise stated but I don't know if this is true or not. I would appreciate any and all input.

[David Lanphear]

If the easement indicates that there is a dominent and servitude estate then the easement is appurtenant to the land and usually passes with title.

I'm not completely certain of the requirements in wording but I believe the land to be servient must be described. For eg. "A ten foot strip of land being southerly and contigious with the northerly boundary of the following described tract of land..." and also the dominent estate must be described as well. For eg. "said drainage easement shall be for the benefit of the following described tract of land....."

If the easement said something like "Joe can drain water over my land" (I'm being simplistic here), then it most likely would be an easement in gross (a personal easement) which is usually NOT passed with the land.

I just pulling this out of a seminar handout I attended a several years ago (2002) put on by CLSA with Daniel Beardsley as the lecturer.

[E_Page]

Yes, the easement passes with the land. If it was not an easement written specific to a person, for a specific length of time, and was not otherwise vacated, it exists for the same purpose for which it was created.

Just because it is not specifically mentioned in the deed DOES NOT mean that it was not included with the most recent conveyance.

The neighbor's attorney is all wet.

[dmi]

Ask them to provide evidence that the easement is terminated. You need evidence that supports your contention that it has not been terminated.

It may well be that in the habendum of the easement to the previous owner, there is a termination clause. The facts are what they are.

Where one is dealing with a specifc set of facts, general rules may not apply

[PE_PLS]

Thanks all for your input. The title company is working on finding the original recorded easement.

[steffan]

Civil Code 1104 may be of some guidance for your issue

[mpallamary]

Yes, the courts assume appurtenance and they "favor" appurtenance. California does not like orphaned easements. The easement does not need to be included in the deed as it automatically transfers. In addition to this being the law, I have testified numerous times on this issue. If need be, I can locate the applicable laws and codes. It is pretty much a foregone conclusion of law.

Good luck.

[dmi]

I hope you will let us know how this all turns.

[PE_PLS]

I will let you know.

[mpallamary]

FYI:
CIVIL CODE
SECTION 887.010-887.090

887.010. As used in this chapter, "easement" means a burden or
servitude upon land, whether or not attached to other land as an
incident or appurtenance, that allows the holder of the burden or
servitude to do acts upon the land.

887.020. This chapter does not apply to an easement that is part of
a unified or reciprocal system for the mutual benefit of multiple
parties.

887.030. This chapter supplements and does not limit or otherwise
affect the common law governing abandonment of an easement or any
other procedure provided by statute or otherwise for clearing an
abandoned easement from title to real property.

887.040. (a) The owner of real property subject to an easement may
bring an action to establish the abandonment of the easement and to
clear record title of the easement.
(b) The action shall be brought in the superior court of the
county in which the real property subject to the easement is located.
(c) The action shall be brought in the same manner and shall be
subject to the same procedure as an action to quiet title pursuant to
Chapter 4 (commencing with Section 760.010) of Title 10 of Part 2 of
the Code of Civil Procedure, to the extent applicable.

887.050. (a) For purposes of this chapter, an easement is abandoned
if all of the following conditions are satisfied for a period of 20
years immediately preceding commencement of the action to establish
abandonment of the easement:
(1) The easement is not used at any time.
(2) No separate property tax assessment is made of the easement
or, if made, no taxes are paid on the assessment.
(3) No instrument creating, reserving, transferring, or otherwise
evidencing the easement is recorded.
(b) This section applies notwithstanding any provision to the
contrary in the instrument creating, reserving, transferring, or
otherwise evidencing the easement or in another recorded document,
unless the instrument or other document provides an earlier
expiration date.

887.060. (a) The owner of an easement may at any time record a
notice of intent to preserve the easement.
(b) In lieu of the statement of the character of the interest
claimed and the record location of the documents creating or
evidencing the easement claimed, as otherwise required by paragraph
(2) of subdivision (b) of Section 880.330, and in lieu of the legal
description of the real property in which the interest is claimed, as
otherwise required by paragraph (3) of subdivision (b) of Section
880.330, and notwithstanding the provisions of Section 880.340, or
any other provision in this title, a notice of intent to preserve an
easement may refer generally and without specificity to any or all
easements claimed by the claimant in any real property situated in
the county.
(c) An easement is not abandoned for purposes of this chapter if
either of the following occurs:
(1) A notice of intent to preserve the easement is recorded within
20 years immediately preceding commencement of the action to
establish the abandonment of the easement.
(2) A notice of intent to preserve the easement is recorded
pursuant to Section 887.070 after commencement of the action to
establish the abandonment of the easement and before judgment is
entered in the action.

887.070. In an action to establish the abandonment of an easement
pursuant to this chapter, the court shall permit the owner of the
easement to record a late notice of intent to preserve the easement
as a condition of dismissal of the action, upon payment into court
for the benefit of the owner of the real property the litigation
expenses attributable to the easement or portion thereof as to which
the notice is recorded. As used in this section, the term "litigation
expenses" means recoverable costs and expenses reasonably and
necessarily incurred in preparation for the action, including a
reasonable attorney's fee.

887.080. An abandoned easement is unenforceable and is deemed to
have expired. A court order establishing abandonment of an easement
pursuant to this chapter is equivalent for all purposes to a
conveyance of the easement to the owner of the real property.

887.090. Subject to Sections 880.370 (grace period for recording
notice) and 887.020, this chapter applies to all easements, whether
executed or recorded before, on, or after January 1, 1986.

[mpallamary]

CALIFORNIA CODES
CIVIL CODE
SECTION 801-813

801. The following land burdens, or servitudes upon land, may be
attached to other land as incidents or appurtenances, and are then
called easements:
1. The right of pasture;
2. The right of fishing;
3. The right of taking game;
4. The right-of-way;
5. The right of taking water, wood, minerals, and other things;
6. The right of transacting business upon land;
7. The right of conducting lawful sports upon land;
8. The right of receiving air, light, or heat from or over, or
discharging the same upon or over land;
9. The right of receiving water from or discharging the same upon
land;
10. The right of flooding land;
11. The right of having water flow without diminution or
disturbance of any kind;
12. The right of using a wall as a party wall;
13. The right of receiving more than natural support from adjacent
land or things affixed thereto;
14. The right of having the whole of a division fence maintained
by a coterminous owner;
15. The right of having public conveyances stopped, or of stopping
the same on land;
16. The right of a seat in church;
17. The right of burial;
18. The right of receiving sunlight upon or over land as specified
in Section 801.5.

[802.] Section Eight Hundred and Two. The following land burdens,
or servitudes upon land, may be granted and held, though not attached
to land:
One--The right to pasture, and of fishing and taking game.
Two--The right of a seat in church.
Third--The right of burial.
Four--The right of taking rents and tolls.
Five--The right of way.
Six--The right of taking water, wood, minerals, or other things.

803. The land to which an easement is attached is called the
dominant tenement; the land upon which a burden or servitude is laid
is called the servient tenement.

804. A servitude can be created only by one who has a vested estate
in the servient tenement.

805. A servitude thereon cannot be held by the owner of the
servient tenement.

806. The extent of a servitude is determined by the terms of the
grant, or the nature of the enjoyment by which it was acquired.

807. In case of partition of the dominant tenement the burden must
be apportioned according to the division of the dominant tenement,
but not in such a way as to increase the burden upon the servient
tenement.

808. The owner of a future estate in a dominant tenement may use
easements attached thereto for the purpose of viewing waste,
demanding rent, or removing an obstruction to the enjoyment of such
easements, although such tenement is occupied by a tenant.

809. The owner of any estate in a dominant tenement, or the
occupant of such tenement, may maintain an action for the enforcement
of an easement attached thereto.

810. The owner in fee of a servient tenement may maintain an action
for the possession of the land, against any one unlawfully possessed
thereof, though a servitude exists thereon in favor of the public.

811. A servitude is extinguished:
1. By the vesting of the right to the servitude and the right to
the servient tenement in the same person;
2. By the destruction of the servient tenement;
3. By the performance of any act upon either tenement, by the
owner of the servitude, or with his assent, which is incompatible
with its nature or exercise; or,
4. When the servitude was acquired by enjoyment, by disuse thereof
by the owner of the servitude for the period prescribed for
acquiring title by enjoyment.

[mpallamary]

The attached should cover it.

Good luck.

[PE_PLS]

Thanks for the documentation.

[Ian Wilson]

Since a picture is worth a thousand words...

Where Noack Drive and Woodpecker come together is about where the access to Casa Loma Drive exists...

I've uploaded the AP Map and an RS that covers the subject property.

.

[mpallamary]

As always my friend, impeccable timing and contributions. Thanks! What a lecture series we can draw off this forum!

[PE_PLS]

So the title company found a copy of the easement (attached). It was granted specifically to the previous owner, and doesn't mention the dominant tenement. Is there any way to argue that this easement passes on to the new owner? Since a drain pipe was installed along the entire easement does that make any difference? Can the servient tenement now rip out the drain pipe since the easement was granted to the previous owner? Do we still have any right to use the drain pipe?

If we don't have any rights to use the pipe, does my client potentially have a claim against the title company since this easement is one of the insured parcels on his title policy?

[dmi]

Perhaps, I did did not read the grant carefully enough,but I did not see anything that would could be used to construe the grant was ANYTHING OTHER THAN AN APPUTENANT EASEMENT. There would need to be some action and a recorded document to reflect the intent of the parties to remove this easement from title and extinguish the rights previously granted

WHAT DOES THE TITLE COMPANY SAY?

The terms of the easement states it is for water drainage. There is no language to terminate the easement and no language stating that it is in gross. A key question is has there been any change to the dominant estate, such that it would obviate the need for the easement?
Your client ought to engage an attorney and take whatever action is their attorney's recommendation.

If the other party rips out the pipe and this deprives the easement owner of the quite enjoyment of their rights, then somebody is going to be in a heap of trouble.

BTW Their argument that is was granted to the previous owner, just shows that they do not understand what they are doing. That could have well been their intent, but this intent must be derived from the four corners of the document.... there is always a grantee.....

[mpallamary]

Amen Dane.

[dmi]

I meant "appurtenant".

[Anthony Maffia]

The neighbor is wrong, the easement rides with the property. Special wording is required otherwise. This was even covered in Real Estate 101 class I took, but I got rid of the book. :(

Do you have a copy of a letter from the attorney? If not, perhaps the neighbor is bluffing?

[E_Page]

Dane is right on. That the previous owner's name is that listed as grantee is not enough to make it specific only for that person's use. There needed to be specific language in the conveyance that the easement would be considered extinguished when that particular grantee no longer needed it if that was the intent. The language in this one is typical of easements that travel with the land through many successive changes in title ownership.