Non-Monetary Encumberances

Question 1

Your neighbors use a portion of your property to reach their guest apartment, which is on their property. As far as you can recall, you never gave them permission to use your property, and you discuss with your attorney the possibility of preventing the neighbors from using your property. Your attorney explains that the ownership of the neighbors’ real estate includes an easement appurtenant giving them the right to use that portion of your property. Your property is the:

Answer 1

Servient Tenement

*An easement appurtenant allows the holder of one property to benefit from another’s. In this case, your property is servient because it is the one burdened by the easement while your neighbor’s is dominant since it is the one that benefits. If you would have given permission to the neighbors to use your driveway, you would have effectively licensed the neighbors, not the property. (The word “license” is not typically used as an adjective for the word property.)

Question 2

The owner of a large parcel of real estate legally divided it into two smaller parcels. Parcel North was directly to the north of Parcel South. The only road in the area bordered Parcel South. The owner intended to keep Parcel North, and wanted to prevent it from becoming landlocked. In the deed to the buyer of Parcel South, the owner reserved a non-exclusive easement for ingress and egress purposes over the westerly 8 feet of Parcel South. After both parcels were sold to two new owners, the new owner of Parcel South fenced in the entire parcel, making ingress and egress over the westerly 8 feet impossible for the new owner of Parcel North. In a lawsuit between the new owner of Parcel North and the new owner of Parcel South, who will most likely win?

Answer 2

The owner of Parcel North. An easement appurtenant cannot unilaterally be terminated by the servient tenement.

• The easement described in the test question is an easement appurtenant. The old owner, who split his large parcel in two, created the easement by reserving it in the deed to the individual who first purchased Parcel South. In an easement appurtenant, there is a dominant tenement (i.e., the parcel that benefits from the easement) and a servient tenement (i.e., the parcel that is burdened by the easement). Here, the parcel that benefits from the easement is Parcel North because the easement allows the owner to cross over the westerly 8 feet of Parcel South to get access to the road. Parcel South is burdened with the easement because people who don’t even own the land are allowed to use the westerly 8 feet of Parcel South for ingress and egress purposes. The owner of a parcel of real estate burdened with a servient tenement cannot unilaterally terminate an easement appurtenant. An easement appurtenant “runs with the land” and transfers with the deed. Therefore, by fencing in Parcel South, the new owner of Parcel South will most likely be found to have violated the easement conditions and will lose the lawsuit.