Creating Easements Flashcards
How are easements commonly created?
Express grant
Reservation in a grant deed
Written agreement between owners of adjoining land
True or False
An easement should always be recorded.
True
To assure its continued existence
Who records the easement?
The party benefitting from the easement as the dominant tenement
Define express grant
The servient tenement (giver of the easement), grants the easement by deed or express agreement.
Define Express Reservation
The seller of a parcel who owns adjoining land reserves an easement or right-of-way over the former property. This is created at the time of the sale with a deed or express agreement.
What is Implied Grant or Reservation?
The existence of an easement is obvious and necessary at the time a property is conveyed, even though no mention is made of it in the deed.
What is an easement by necessity?
Created when a parcel is completely land locked and has no access. It is automatically terminated when another way to enter and leave the property becomes available.
Define prescription
The process of acquiring an interest, not ownership, in a certain property.
How is an easement by prescription created?
By continuous and uninterrupted use, by a single party, for a period of 5 years.
The use must be against the owner’s wishes and be open and notorious.
No confrontation with the owner is required and property taxes do not have to be paid.
The party wishing to obtain the prescriptive easement must have some reasonable claim to the use of the property.
Compare the acquisition of property rights through prescription and through adverse possession.
They are similar however, the main difference is the payment of taxes.
Adverse possession requires the payment of taxes for 5 continuous years, while prescription does not.
One can acquire title to property through adverse possession, but only a specified interest in property through prescription.
Name 5 ways easements are created.
Express Grant Express Reservation Implied Grant or Reservation Necessity Prescription
Any species of permanent property, as lands, houses, rents, an office, or franchise, that may be held of another
Tenement
A comprehensive legal term for any type of property of a permanent nature - including land, houses, and other buildings as well as rights attaching thereto, such as rents.
Legal definition of tenement
The property (i.e. Tenement) or piece of land that benefits from, or has the advantage of, an easement
Dominant Tenement
An easement created for and beneficial to the owner of adjoining or attached lands is an:
Easement appurtenant
True or False:
An easement is real property, not personal property, but it is not an estate.
True
The land that obtains the benefits of an easement is called the:
Dominant Tenement
The land that gives the easement (use of the land) for the benefit of another is called the :
Servient tenement
True or False:
The appurtenant easement belongs to the land and is transferred with the land. This easement cannot be transferred separately from the land.
True
Created by grant or agreement for a specific purpose, an ________ is the right, privilege, or interest which one party has in land of another
EASEMENT
True or False:
The owner of the servient tenement cannot revoke the easement; it must serve the dominant tenement, even if not used.
True
True or False:
Easements in gross do not benefit adjoining lands.
True
True or False:
An easement in gross is a personal property right. Even though it is a personal right, there are still servient tenements.
True
Example: a utility company obtaining the right to run natural gas lines across your land. In this case, your land would become the servient tenement.
Easements are created in 3 basic ways:
- Express Grant (in writing)
- Implication of Law (implied easement)
- Long use (prescription)
True or False:
Easements are transferred automatically if they are easements appurtenant.
True
True or false:
Easements in gross can be transferred only by express agreement, providing the easement is not made to a specific individual.
True
True or false:
An easement should be recorded.
True.
If it is not recorded, and the purchaser does not have the knowledge of an easement , the. The easement may not be considered to have been transferred with the property.
Easements may be terminated in several ways:
- Express release
- Merger or dominant and servient tenements
- Excessive use
- Abandonment and non-use
- Destruction of servient tenement
True or False:
Easements are not liens, they are encumbrances.
True
Easements are usually created by deed or prescription. True or false.
True
An easement obtained by open, notorious and hostile use is referred to as a ______________ easement.
Prescription easement
Possession for 5 continuous years can create a prescriptive easement as long as there is :
Open and notorious use
Uninterrupted use for 5 years
Hostile (used without permission of the owner)
Under a claim of right.
There are 3 types of private building restrictions:
Covenants
Conditions
Restrictions (CC&Rs)
The restriction on the use of private property by the local government agency is referred to as:
Zoning
Promises to do or not to do something, the failure of which may terminate the contract is referred to as :
Conditions
The penalty for not following the set conditions is the reversion of the property to the grantor.
A promise to do or not to do a certain thing (in reference to private restrictions):
Covenants
Promise broke, sue for damages
The wrongful, unauthorized placement of improvements or permanent fixtures on property by a nonowner of that property is referred to as :
Encroachment
True or false:
You must pursue the right to have an encroachment removed within 3 years or lose your right.
True
True or False
Unlike an easement, a license can be revoked.
True
The revocable permission to enter a licensor’s land to do something that would other wise be illegal, such as hunting game is called a:
License
True or False
A Homestead is not an encumbrance.
True
Name the two types of homesteads:
- Head of household
2. Federal Homestead Act of 1862
A special provision of the CA law that allows homeowners to protect their homes from forced sale to satisfy their debts, within certain limits.
Homestead
True or False.
You may only have one Homestead at a time.
True
After acknowledgement and recording, protects a residence from judgements that become liens
Declaration of Homestead
A Homestead is terminated by:
- Declaration of abandonment
2. The sale of the homesteaded property
