A couple weeks ago, I talked about title insurance and how it can help you guard against unexpected liens on your property (someone having legal rights to your property that trump yours). I made a reference to an easement and promised to define it, so here you go. According to legaldictionary.law.com, an easement is “ the right to use the real property of another for a specific purpose.” The easement itself is a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes.
If you choose to provide an easement, the common way to do so is to allow permission to use some of your land in exchange for payment, trade, or for free because it’s totally reasonable (e.g., you allow a neighbor to use a road along the edge of your property that provides the only access to their property). Common easements include access to roads, utilities, waterlines, wells or springs. More esoteric easements include buying access to a view or sunlight. For example, if you have solar panels that provide the bulk of your household energy, you may need a sunlight easement that prevents neighbors from planting tall trees that block the sun, making your solar panels useless.
A prescriptive easement is a way people can gain legal access to your property without your consent. A prescriptive easement occurs when a property has been used uninterrupted for five or more years in a way that is “open and notorious” (that’s the legal description) and against the will of the owner. On the coast, a common example is abalone divers making a footpath across someone’s property to gain access to the ocean. If that property is sold, those divers may have a prescriptive easement to continue to use that footpath forever.
Here’s the weird thing. If you give the trespassers permission to use the path, then they are not trespassing, when the property changes hands, the divers have to get permission from the new owners to legally continue to use the path. They don’t have a prescriptive easement because they weren’t using the property against the owner’s wishes. So, if you have a property being used in a way you don’t approve of, take care of the problem (post signs, build a fence, bust out your video camera and press charges, etc.). If you don’t have a problem, give permission to limited people to use the property. If you don’t like confrontation, get your lawyer involved. They do confrontation for a living.
If you don’t address the issue, you may give away rights that you (and future property owners) shouldn’t give away.
Speaking of giving away rights, if you don’t register to vote, you give away the right to have your say. Have you moved recently? Don’t forget to re-register to vote. Those elected to federal, state and local office make decisions that affect you every day, from the taxes you pay to the quality of your schools. Many races are decided by just a handful of votes (remember Florida? Al Gore does.) It’s essential that all those eligible to vote do so. The next election is November 4, 2014 and the deadline to register to vote is October 13. You can register to vote at: http://www.sos.ca.gov/elections/elections_vr.htm
If there’s something you would like me to write about or if you have questions about real estate or property management, feel free to contact me at rselzer@selzerrealty.com or visit our website at www.realtyworldselzer.com. If I use your suggestion in a column, I’ll send you’re a $5.00 gift card to Schat’s Bakery. If you’d like to read previous articles, visit my blog at www.richardselzer.com. Dick Selzer is a real estate broker who has been in the business for more than 35 years.