In previous articles, we’ve discussed easements or “right of ways” and how they are used. Generally speaking, an easement or “right of way” grants one person or entity the right to use another person or entity’s property. As is obvious, this can come with a number of complications; particularly if the situation is approached without the necessary information and knowledge regarding how to handle the situation. So previous articles about how to handle an easement already in place are important, but that’s not the only important discussion when it comes to easements in southern California real estate. What do you do when you need to create an easement?
Top 5 Methods of Creating Real Estate Easements.
1. Written Agreement Between the Two Parties – Two adjoining parcel owners can generate an agreement outlining how costs to maintain shared property between their two parcels could be shared or divided and setting up an easement for the parcel owner on which the shared property is not located so they can gain access for allowed purposes (i.e. a shared well).
2. Easement by Necessity Through Court Order – In some instances, the court can designate an easement out of necessity. For instance, if a piece of property exists that has no access to the public roadway because it is surrounded by properties owned by others, they must be allowed to exit/enter their own property.
3. A Deed Conveying Property Designating an Easement – This often occurs when a landowner wants to sell a portion of a larger piece of land. For instance, a landowner could sell the back 20 acres of their 50 acre piece of land. In order for the new owner to access public roadways from their land, an easement would be created in the deed and a portion of the front acreage (still held by the original owner) would be designated to be used for access.
4. Through Condemnation for the Public Good – Local, state or federal government can condemn a property or a portion of a property under eminent domain or order to utilize the land for a public project as long as it is deemed as for the “public good.” In this instance, the current owner of the land will often have dissenting views as to what is actually for the “public good.” In many cases, this type of easement could occur in order for the completion of new highways, etc.
5. Forcible Creation through Easement by Prescription – This can occur when a property owner generates access to his own property by creating an entryway that crosses an adjoining property. For instance, the neighboring property owner creates a drive across the property of another in order to use it exclusively to enter the first property. Imagine it was done without the permission of the second property owner, but visibly and with their knowledge. After a certain amount of time has passed, the second owner could be forced to allow the easement “by prescription” simply by not stopping access.
If you have questions about creating an easement on a southern California real estate property or if you have other questions regarding real estate transactions please get in touch with The Law Office of Retz & Aldover LLP.