An Easement May Exist Despite a Deed Being Silent on its Existence

Updated on December 5, 2022

Generally speaking, an easement is an interest in the land of another that gives its owner the right to use another’s property or to prevent the use of the property by its owner. The land to which the easement attaches is called the dominant tenement; the land that is burdened is called the servient tenement. (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 568.)

Easements Appurtenant and Easements in Gross

Easements are classified as appurtenant (attaching to the land, the dominant tenement) or in gross (a personal or individual right that does not attach to the land). The basic effect of this distinction between easements appurtenant and easements in gross arises when the owner of an easement (the owner of the dominant tenement) transfers his or her property.

The conveyance of the dominant tenement transfers all appurtenant easements, even though the easements are not specifically mentioned in the deed. Easements in gross, because they are only a personal right to use the servient tenement do not pass with the land when it is transferred.  (Moylan, supra, 181 Cal.App.3d at 568.)

Creating an Easements Appurtenant and in Gross

Generally, the instrument creating the easement should specify whether an easement is appurtenant or in gross. However, as is often the case, the instrument creating the easement may be deficient because it fails to specify the nature of the easement and/or the dominant tenement (the land the easement benefits). (Id.) When dealing with such deficient documents, courts apply general principles in determining the nature of the easement, including:

1. “Where a roadway easement provides access to a particular parcel of real property a court may infer the easement is appurtenant to that parcel” (Id. at 569); and
2. An easement will not be interpreted as being in gross if it may fairly be interpreted as being appurtenant.  (Id.; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 523.)

In other words, easements for right of way, unless the instrument creating the same specifically states the easement is in gross, will be determined to be easements appurtenant. Such easements will automatically transfer with the land to subsequent owners of the same, even if they are not specifically mentioned in the deed.

Thus, a piece of real property that appears to be landlocked based on the deed transferring it is not necessarily lacking a right of way easement. The only way to truly determine what easements, if any, exist is to conduct a thorough review of the documents recorded against the property at issue and the adjacent properties.

Have an deeded easement dispute? If your’re you looking for an property easement disputes Los Angeles, Schorr Law is a Los Angeles based real estate attorneys professional corporation. Please feel free to contact us at info@schorr-law.com, (310) 954-1877, or send us a message via our Contact Form.

See related: Appurtenant Easement vs Easement in Gross