For the prior video in this series covering leaseholds conveying special uses, click here

Easements and use licenses

Easements and use licenses are not real estate but they give a holder of the rights a limited and nonexclusive use of someone else’s property.

An easement is a right to use another’s property for a specific purpose. An easement is an interest held in someone else’s real estate. It grants its holder the right to limit the activities of others on the property burdened by the easement, including the owner of the burdened property. [Calif. Civil Code §§801 et seq.]

For example, a landowner holds an easement allowing them to construct and have access to a pipeline across their neighbor’s property. The neighbor’s right to develop their own property is limited since the neighbor may do nothing to interfere with the easement owner’s access to the pipeline.

A license grants its holder a personal privilege to use property, but no possessory right to occupy it to the exclusion of others. Unlike easements, licenses are not exclusive rights — an owner may give many licenses to perform the same or different activity in the same area.

Unlike an easement, a license may be revoked at the will of the person who grants it, unless agreed to the contrary or it has become irrevocable.

Related article:

Word-of-the-Week: License

Ingress and egress

The most common easement is used for ingress and egress. An easement for ingress and egress creates a right of way allowing one property owner to traverse a portion of another’s land to access their property.

An easement creates a tenement relationship between two parcels of real estate since it:

  • benefits one property, referred to as the dominant tenement, whose owner is entitled to use the easement; and
  • burdens another property, referred to as the servient tenement, the owner’s use of which is subject to the easement.

When an owner whose property is burdened by an easement interferes with the use of the easement by a neighbor whose property benefits from the easement, the neighbor is entitled to have the use of the easement reinstated. The easement is reinstated by either removal, relocation or modification of the interference.

Further, the neighbor who holds the easement is entitled to compensation for their money losses caused by the servient tenement owner’s obstruction of the neighbor’s use of the easement. [Moylan v. Dykes (1986) 181 CA3d 561]

Appurtenant or in gross: does the easement run?

An easement burdening an owner’s property as an encumbrance on their title is classified as either:

  • an appurtenant easement, meaning the allowed use belongs to and benefits an adjacent property and is said to run with the land as an interest the adjacent property holds in the burdened real estate; or
  • an easement in gross, meaning it belongs to an individual, not land, as their personal right to a specified use of the burdened real estate.

An appurtenant easement is incidental to the title of the property which benefits from its use. An easement is not reflected as a recorded interest on the title to the parcel of land it benefits. Nor is it a personal right held by a particular individual who may now or have previously owned the parcel benefiting from the easement.

Accordingly, an appurtenant easement is recorded as an encumbrance on title to the burdened property. The easement remains on the property’s title after a conveyance to new owners of either the benefitting or burdened property. To be enforceable, the easement does not need to be referenced in the grant deed conveying either property to new owners since it runs with the land. [Moylan, supra]

Conversely, an easement in gross benefits a particular person – not the real estate owned by that person. An easement in gross is personally held only by the individual who may use the easement. No parcel of real estate may benefit from an easement in gross since only the individual holding the easement can benefit.

An easement in gross is a personal right that is not transferred with the sale of real estate owned by the holder of the easement. However, the right can be transferred by the easement holder to another person by a writing — unless the transfer of the easement in gross is prohibited by a provision in the document creating the easement. [LeDeit v. Ehlert (1962) 205 CA2d 154]