Convey Easement Rights to Property

Full Question:

We recently (two years ago) acquired a piece of property through a trust disbursement. The trustor mentions in the trust that the real property had a common driveway with the adjoining property. However, the grant deed has no such description in it (an easement). Further, the adjoining property has improvements constructed which are several feet onto our property (as determined by a subsequent land survey). Do we have the right to deny easement rights, and demand removal of the improvements on our land? There is no legal easement described on our land in any deed. The new owner of the adjoining property wishes to now sell his property, and convey easement rights on our property to the new buyer, and refuse us the right to fence off our property, even though the previous owner of both properties had established no easement on our property (as defined by no easement being listed on our deed), though the previous owner of both properties used it as such.
04/13/2009   |   Category: Real Property ยป Easements   |   State: California   |   #15970


A trust is the legal relationship between one person, the trustee, having an equitable ownership or management of certain property and another person, the beneficiary, owning the legal title to that property. Most trusts are founded by persons called trustors, settlors and/or donors who execute a written agreement or declaration of trust which establishes the trust and spells out the terms and conditions upon which it will be conducted. The rights of the beneficiaries depend on the terms of the trust. The trust agreement provides the amount of control the beneficiaries have over the manner in which trust assets are held and managed. During the life of the trust, profits and, sometimes, a portion of the principal, called the "corpus", may be distributed to the beneficiaries, and the remainder is usually distributed upon the occurrence of an event, such as the death of the creator. Once assets are put into the trust they belong to the trust itself, not the trustee, and remain subject to the rules and instructions of the trust contract. While there are a number of different types of trusts, the basic types are revocable and irrevocable. Revocable trusts are created during the lifetime of the trustmaker and can be altered, changed, modified or revoked entirely. An irrevocable trust is one which cannot be altered, changed, modified or revoked after its creation.

A deed is the written document which transfers title (ownership) or an interest in real property to another person. A trustee's deed is a deed to be executed by a person serving as a trustee in their appointed capacity. The deed must describe the real property, name the party transferring the property (grantor), the party receiving the property (grantee) and be signed and notarized by the grantor. There are two basic types of deeds: a warranty deed, which guarantees that the grantor owns title, and the quitclaim deed, which transfers only that interest in the real property which the grantor actually has. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title. A warranty deed conveys specifically described rights which together comprise good title. A grant deed is a deed containing an implied warranty that there are no encumbrances on the property not described in the deed and that the person transferring the property actually owns the title. It must describe the property by legaldescription of boundaries and/or parcel numbers, be signed by all people transferring the property, and be acknowledged before a notary public. It is in contrast to a quit claim deed, which only conveys the interest that the transferor actually owns, if any, without a warranty of ownership. A grant deed transfers the owner's ownership and promises that the title hasn't already been transferred to someone else or been encumbered, except as set out in the deed.

An easement is a property interest, which entitles the owner of the easement to the privilege of a specific and limited use of the land of another. The easement is a real property interest, but separate from the legal title of the owner of the underlying land. The land which receives the benefit of the easement is called the "dominant" property or estate. Easements should describe the extent of the use, as well as the easement location and boundaries. The location, maintenance, and uses of the easement are defined by the agreement, use, or instrument creating the easement. Easements can be created by a deed to be recorded just like any real property interest, by continuous and open use by the non-owner against the rights of the property owner for a statutory number of years, or to do equity (fairness), including giving access to a "land-locked" piece of property. Title reports and title abstracts will usually describe all existing easements upon a parcel of real property. Once an easement is created, the owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying property. The owner of the easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere in the use and enjoyment of the easement by the owner of the property through which the easement exists. Easements may be renegotiated under contract law principles, and may be terminated by abandonment when the easement holder intends to abandon an easement and takes actions which manifest that intent. Two types of easements include easements in gross and appurtenant easements. Easements in gross or personal easements are personal rights given to individuals or specific groups. Once the easement owner dies, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.

An easement can be created by an express grant, by implication, by strict necessity, by permission, and by prescription. An express easement is created by a deed or by a will and therefore, must be in writing. An express easement can also be created when the owner of a certain piece of property conveys the land to another but saves or reserves an easement in it (easement by reservation). An easement by implication can be created if it is at least reasonably necessary to the enjoyment of the original piece of property, the land is divided, so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners, and the use for which the implied easement is claimed existed prior to the severance or sale. The courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other. The creation of this sort of easement requires that at one time, both parcels of land were either joined as one or were owned by the same owner. A permissive easement is simply an allowance to use the land of another. It is essentially a license, which is fully revocable at any time by the property owner. In order to be completely certain that a permissive easement will not morph into a prescriptive easement, some landowners erect signs stating the grant of the permissive easement or license. Most litigated easements are those created without permission. An easement by prescription is one that is gained under principles of adverse possession. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. If a person uses another's land for more than the statute of limitations period prescribed by state law, that person may be able to derive an easement by prescription. The use of the land must be open, notorious, hostile, and continuous for a specified number of years as required by law in each state. The time period for obtaining an easement by adverse possession does not begin to run until the one seeking adverse possession actually trespasses on the land. The use of the easement must truly be adverse to the rights of the landowner of the property through which the easement is sought and must be without the landowner's permission. If the use is with permission, it is not adverse. There must be a demonstration of continuous and uninterrupted use throughout the statute of limitations period prescribed by state law.

A driveway easement allows the person who is the beneficiary of the easement to cross the "servient" property. A driveway easement may be created by recording a deed that states, for example, that one neighbor owns the driveway to the halfway point, but has an easement or right of way to use the remainder; however, the adjoining home owns the other half of the driveway, with a right-of-way with respect to the portion the neighbor owns. An easement may be claimed by prescription for the use of the driveway. This requires proof that your neighbor willingly abandoned his use of the driveway during the adverse period when you and your predecessor in title enjoyed the exclusive use of the driveway.

Encroachment is the situation that exists when a structure is built in whole or in part on a neighbor's property. The term “encroach,” as it relates to boundary lines, means to trespass upon the property, domain, or rights of another or to advance beyond proper, established, or usual limits onto the property of another. Boundaries are frequently marked by partition fences, ditches, hedges, trees, etc. Disputes arising from a confusion of boundaries may be generally settled by an action at law. However, courts of equity will entertain a bill for the settlement of boundaries when the rights of one of the parties may be established upon equitable grounds. Encroachments may be the result of incorrect surveys, or mistakes or miscalculations by builders and/or owners when erecting a building. Encroachments may be corrected by giving or selling the encroaching party an easement or lease for the lifetime of the building, or in the case of small structures, actually moving it onto the owner's own property.

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