Trespasser may be granted legal use of your property

Have you checked your easements lately?

By Robert J. Bruss
Inman News


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

After that brief conversation, I checked the legal description for my property. All it says is the city has a public utility easement along the northerly 5 feet of my property. But the easement description doesn't say what underground utilities are there and exactly where they are located.

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

WHAT IS AN EASEMENT? Virtually every property in an urban area is subject to one or more easements. An easement is the legal right of 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. The property that benefits from the easement is called the adjoining dominant tenement."

There is always a servient tenement. However, there is not always an adjoining dominant tenement, such as for a public utility easement.

Private easement examples include a driveway, path or garden area of a neighbor's property. Public easements include utility easements for water, sewer, storm drain, electric lines, phone lines, gas pipes and cable TV lines.

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

But some easements are hostile, without the specific permission of the property owner. To illustrate, suppose I drive over part of your property to reach my garage because that route is shorter and easier than using my steep driveway to reach the public street. Even if you tell me to stop driving over your land, but I continue to do so for the number of years required by state law, eventually I can obtain a permanent prescriptive easement for that purpose.

To be valid, an easement must be recorded against the title of the property that is subject to the easement, such as a shared driveway between two houses.

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

The legal theory is all land should have road access, and when the landlocked parcel was created the owner at that time forgot to include access. A quiet title lawsuit is usually required to create an easement by necessity over an adjoining parcel that has public road access and, at some time 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 be valid, the easement must either be recorded in the public records affecting a specific parcel, or it must be capable of being perfected into a valid easement.

1. EASEMENTS APPURTENANT BENEFIT AN ADJOINING PARCEL. Where there is a dominant tenement that benefits from an easement, such as for a driveway, that is an easement appurtenant. Most easements appurtenant were created when a subdivision was developed, or when two adjoining lots were subdivided.

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

When a parcel is landlocked without public road access, it is up to the owner of that parcel to prove entitlement to an easement by necessity. If the court approves such an easement, it becomes an easement appurtenant 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 in gross. Most such easements are recorded in the public records against each property title affected.

An easement in gross has a servient tenement, but no dominant tenement. Sometimes such easements were not properly recorded. If the easement in gross is obvious, such as for overhead power lines, it is hard for the property owner to deny awareness.

But underground easements in gross, such as for water, sewer and gas pipes, might not be obvious. To avoid unexpected surprises, property buyers should insist on receiving an owner's title insurance policy at the time of purchase. If an underground easement in gross is later discovered, but it was not disclosed in the owner's title insurance policy, the title insurer may be liable to the property owner for damages.

For example, suppose you decide to build a swimming pool in your backyard. As the contractor is digging, he discovers a previously undisclosed city sewer through the middle of your backyard. If the city's sewer easement was properly recorded, but the title insurer failed to discover and disclose it, the title insurer is liable to the property owner for either the cost of moving the sewer pipe or the diminished value of the property.

3. PRESCRIPTIVE EASEMENTS REQUIRE HOSTILITY. When someone uses part of your property without your permission, and without a prior recorded easement, he or she might become entitled to permanent use of that easement.

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

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

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

Because prescriptive easements can be shared, the hostile use need not be exclusive. Use can be shared with the legal owner and/or other hostile prescriptive easement claimants.After meeting the time and use requirements, a prescriptive easement acquirer can perfect the easement by bringing a quiet title lawsuit against the property's legal owner. An experienced real estate attorney is usually needed to prove the prescriptive easement requirements.

SUMMARY: Virtually every property is burdened by or benefits from an easement. Property owners should understand the legal consequences of those easements and where they are located. Unless properly recorded, an easement 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 local real estate attorney.