Do Easements Transfer with The Sale of Property in California?
Easements provide an individual or entity to use a portion of private property for a specific purpose. These non-possessory rights are typically mentioned in the property deed but could be missed out in certain situations. Easements that are not specified in a property deed usually come to an end when the property is sold, the grantor passes away, or an expiration date has been reached.
It’s crucial that you speak with a reliable real estate attorney in California because there might be unique circumstances that keep the easements active even when the property is sold.
Effect of Sale on Different Types of Easements in California
The basic framework for easements in California Civil Code is detailed between sections 801 – 813. The framework provides an overall look at easement guidelines that landowners and city officials are required to adhere to. This is how different types of easements are treated when a property is sold in California.
- Express Easements
Express easements are the most common type of easement in California. These can be obtained by both individuals and entities via a reservation or grant. Express easements when granted give another entity or individual the right to use a portion of the land for right-of-way purposes.
Express easements when reserved, refer to an easement that has been transferred with the property on sale of the land from one individual to another. The original owner in this situation reserves the easement for the benefit of the individual or entity.
- Implied Easement by Existing Use
Implied easement by existing use is a different type of easement in which the law states that there is a previously implied easement between two parties. This is even when there is no record of a written agreement. The individual or entity that believes that they are able to use a part of the property as an easement will need to show that they were earlier able to use the property for a specific purpose.
- Easement by Necessity
This type of easement occurs when the specific use of land is absolutely necessary. This type of easement doesn’t need any pre-existing easements on the land. Any easement on the land will automatically get transferred when the property is sold. Easement by necessity is usually provided when someone’s property is landlocked and the only way through is by using a portion of another’s property.
- Prescriptive Easement
A prescriptive easement is a type of easement that is granted to an individual or entity after they continue to use a portion of another’s land for a certain period of time. A prescriptive easement may still be granted if the use of land was not permitted by the owner.
Building on a Property with Easement
Utility easements are the most common type of easements on California property. Many property owners believe that they won’t be allowed to build on a property if it has a utility easement. This is not entirely true. You can do a lot of different things with your property as long as you don’t interfere with the ability to use and access the area for water, sewer, gas lines, or any other utility purpose.
If you have an easement in gross on your property, the individual can use it as a right of way, for burial purposes, for the right to pasture, and for fishing among other things. You can always build something simple on an easement, such as a fence. Moreover, you need to remember that the fence can always be taken down to use the easement. The utility company will do everything possible to repair the fence as best as they can.
Many property owners also build hot tubs and pools on easements. Above-ground pools can be easily removed when the easement has to be used. You should refrain from planting trees and other large vegetation. Based on this, you can always have a flower bed or shrubs.
Terminating Easements on a Property
Easements are typically designed to continue for an indefinite period. In relation to this, there are several ways for a property owner to terminate easements. This includes:
- Express agreement: You can get into an agreement with the easement holder to terminate the easement.
- Abandonment: In this, the easement holder takes action that stops them from using the easement.
- Merger: Dominant estate owner can obtain the title to the servient estate.
- Ending by necessity: This occurs when the easement is no longer deemed to be necessary.
It’s fundamental to understand that abandonment needs to be permanent. Not using the easement for a short period of time doesn’t refer to abandonment. There are several other nuances that come into play making it important to retain the services of a skilled real estate attorney.
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