An easement appurtenant gives a property owner a right of usage to portions of an adjoining property
By Jeff Sorg, OnlineEd Blog
(April 5, 2019)
(PORTLAND, Ore.) OnlineEd – An easement appurtenant gives a property owner a right of usage to portions of an adjoining property owned by another party. The property enjoying the usage right is called the dominant tenement, or dominant estate. The property containing the physical easement itself is the servient tenement since it must serve the easement use.
The term appurtenant means “attaching to.” An easement appurtenant attaches to the estate and transfers with it unless specifically stated otherwise in the transaction documents. More specifically, the easement attaches as a beneficial interest to the dominant estate, and as an encumbrance to the servient estate. The easement appurtenant then becomes part of the dominant estate’s bundle of rights and the servient estate’s obligation, or encumbrance.
Transfer. Easement appurtenant rights and obligations automatically transfer with the property upon transfer of either the dominant or servient estate, whether mentioned in the deed or not. For example, Taylor grants Madison the right to share Taylor’s driveway at any time over a five-year period, and the grant is duly recorded. If Madison’s property sells in two years, the easement right transfers to the buyer as part of the estate.
Non-exclusive use. The servient tenement, as well as the dominant tenement, may use the easement area, provided the use does not unreasonably obstruct the dominant use.
The exhibit shows a conventional easement appurtenant. The driveway marked A belongs to Parcel #2. An easement appurtenant, marked B, allows Parcel #3 to use #2’s driveway. Parcel #3 is the dominant tenement, and #2 is the servient tenement.
Easement by necessity. An easement by necessity is an easement appurtenant granted by a court of law to a property owner because of a circumstance of necessity, most commonly the need for access to a property. Since property cannot be landlocked (without legal access to a public thoroughfare) a court will grant an owner of a landlocked property an easement by necessity over an adjoining property that has access to a thoroughfare. The landlocked party becomes the dominant tenement, and the property containing the easement is the servient tenement.
In the exhibit, Parcel #1, which is landlocked, owns an easement by necessity, marked C, across Parcel #2.
Party wall easement. A party wall is a common wall shared by two separate structures along a property boundary.
Party wall agreements generally provide for severalty ownership of half of the wall by each owner, or at least some fraction of the width of the wall. In addition, the agreement grants a negative easement appurtenant to each owner in the other owner’s wall. This is to prevent unlimited use of the wall, in particular, a destructive use that would jeopardize the adjacent property owner’s building. The agreement also establishes responsibilities and obligations for maintenance and repair of the wall.
Example: Helen and Jesus are adjacent neighbors in an urban housing complex having party walls on property lines. They both agree that they separately own the portion of the party wall on their property. They also grant each other an easement appurtenant in their owned portion of the wall. The easement restricts any use of the wall that would impair its condition. They also agree to split any repairs or maintenance evenly.
Other structures that are subject to party agreements are common fences, driveways, and walkways.
A negative easement appurtenant does not allow the owner of the dominant estate to cross over the servient estate. Instead, the dominant estate has the right to restrict some activity or use of the servient estate.
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Example: Developer Jovan purchased a tract of land abutting Oceanfront Lake and divided it into two parcels. Lot A is on the shoreline and Lot B is farther back from the shore. Lot B has a good view of the lake because it is situated on higher ground that overlooks Lot A, but it is located behind Lot A and could be lost if Lot A builds a two-story house. Because Jovan wants the best price for each parcel, the view of the lake from Lot B is protected by adding a deed restriction in Lot A’s deed to limit any structure built on Lot A to a single story.
In the example above, the owner of Lot B is the owner of a negative easement appurtenant. The dominant estate, Lot B, can prohibit certain activity on Lot A, the servient estate, that could block or restrict the view of the lake. In this situation, Lot B’s owner does not have an affirmative easement appurtenant and cannot cross over the land of Lot A to reach the lake, since only the view is protected.
Though not applicable to the above example, it is possible to have both an affirmative and negative easement at the same time. If an easement had been created to allow access to the lake as well as to limit the height of any structure, then the owner of Lot B would have both a negative and affirmative easement.
Easements appurtenant are created in any one of the following ways:
By grant or reservation – An easement created by grant or reservation is created by the express written agreement of the landowner. This is most frequently done in the deed but can be done in a separate recorded instrument. When done by grant, the owner of a property gives to someone else the easement right. When done by reservation, the owner of the property retains an easement on land conveyed to another.
By intent or necessity – The right to ingress (entry) and egress (exit) are required by law. Any property that is landlocked, meaning it has no ingress and egress, has these rights and a landlocked landowner has a right to an easement to cross the land of another to reach a public way. This type of easement for a landlocked owner is called an easement by necessity and is outlined in ORS 376. The servient estate in the easement by necessity may be entitled to compensation for the easement.
By prescription – An easement by prescription is the use of the land of another that is:
- open and notorious (obvious to anyone);
- actual, continuous (uninterrupted for the entire required period);
- adverse to the rights of the true property owner;
- hostile (in opposition to the claim of another, not “hostile” in the common sense); and
- continuous for a statutorily defined period (10 years in Oregon).
An easement by prescription gives the dominant tenant the right of use, not ownership.
By implication – An easement by implication arises out of the conduct of the parties. This means it is an implied easement, not a written easement. An easement by necessity is distinguished from an easement by implication in that the easement by necessity arises only when “strictly” necessary, whereas the easement by implication can arise when “reasonably” necessary.
Easement by Implication – The right of lot owners in a subdivision to use a roadway on the approved subdivision plan without requiring a specific grant or easement to each new lot.
By condemnation – The government’s right to use the land of an owner is created by the exercise of its right of eminent domain. Eminent domain includes not only the right of the government to obtain an ownership interest in the property of a private owner; it also includes the right of the government to create a use easement over the land of a private property owner to benefit the government-owned land.
Easement by Condemnation – The US Bureau of Land Management uses its power of eminent domain to create an easement of right of way over private property to access government-owned, but landlocked forest land.
Easements appurtenant can be terminated by one of the following ways:
- By the release of the easement by the dominant owner
- By merging the dominant and servient lands into one tract
- By abandonment of the easement by the dominant owner
- By the purpose for which the easement was created ceasing to exist
- By the expiration of the time for which the easement was created
©Jeff Sorg, all rights reserved.
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Jeff Sorg, an Oregon licensed Principal Broker, is a co-founder of OnlineEd®, a Web-based vocational school founded in 1997 where he also serves as Corporate Secretary, Chief Operating Officer, and School Director. Sorg holds vocational instructor licenses for real estate education in Oregon, Washington, California, Flordia, and Nevada and has authored numerous pre-licensing and continuing education courses in those states. Sorg holds the International Distance Education Certification Center’s CDEi Designation for distance education, originally awarded in 2008.
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