Easements with Dominic Signorotti
Ever heard about easements? Would it surprise you to hear that your property probably has more than one easement attached to it? In this episode I talk with Dominic Signorotti, a real property litigator at McKenna Brink Signorotti LLP about what easements are, how they impact real property owners, and potential disputes regarding easement rights. As Dominic says in the episode, probably every parcel of real property is affected by easements in one way or another.
If you or someone you know have questions about easements, or potential conflicts with neighboring landowners with respect to easements or access rights, contact Dominic Signorotti at mckennabrink.com to discuss with him your property rights.
Thank you to Dominic Signorotti for joining me on the podcast today. Be safe and well everyone.
Transcript
Ryan (00:01):
Welcome to I know a lawyer. I'm your host, Ryan Lockhart. This podcast is brought to you by McKenna Brink Signorotti LLP. We are a boutique law firm located in Walnut Creek, California. Our firm can handle legal issues ranging from tax, estate planning, business law, and really all types of civil litigation. And today we've got a special guest I'm joined by Dominic Signorotti, one of the namesakes of the firm. How are you doing today Dom?
Dom (00:26):
Doing well, Ryan. And glad to be here.
Ryan (00:28):
Thanks for joining me. And Dom is joining me today to talk the wonderful world of easements. A topic that admittedly, I don't really know that much about, but I've just heard a little bit from him over the years. We worked together for a long time. We're friends, but thought it would be a good idea to get on today to talk about easements. So lets start with an easy quick question, Dom, what is an easement?
Dom (00:51):
Easy, quick question is right. So yeah, easements are one of those things that not a lot of people necessarily know about, but they basically affect every piece of real property in the United States. So anybody who owns a house generally has some kind of easement effect in their land and really what an easement is. It's the right, it's the legal right to use somebody else's land. So it's different than ownership in that you don't actually own the underlying land, but oftentimes you have as many of the same rights as the person who actually owns the land.
Ryan (01:24):
So, and I'm just gonna think about a house that I used to have. It was a zero lot line community. So I remember having a three foot easement into my neighbor's side. So I could, I guess, repair the side of my house if I needed to. So it's pretty common. I think in like newer, when I say newer last 20, 30 years planned developments, correct?
Dom (01:42):
Yeah, that's right. So, you know, basically any new subdivisions that's going up, there's going to be all kinds of easements there. So you'll have, you know, a reciprocal roadway easement for everybody to use the portion of the road in front of your property, because oftentimes your actual property line goes into the center line of the road and meets your neighbors property on the other side of the street. So everybody who lives there and, and often the public at large will have easements to use that road. You'll have any sort of utility that servicing your property, whether it's electrical or sewer or water, they're going to have easements, which allow them to run their pipes or run their electrical lines over your property to your house. So it's one of those things where they're, they're basically affecting every piece of property in the country.
Ryan (02:27):
Hmm. So how are they created?
Dom (02:31):
That's a good question. So there's really two different ways to create an easement. You can have an express easement or an implied and express easements are the easy one. That's the one that, you know, the vast majority of people are dealing with. They're simply done by a document oftentimes called a grant deed that will have an easement in it. Sometime it'll be an easement agreement itself or just an easement. And that's a, a written document that's recorded with the County recorder. And the purpose of doing that is so that anybody in the world, if it's a public record, they can look and they can see, Hey, what kind of easements affect my property? And so oftentimes you'll have easements, allowing people say to use a portion of your property. You know, if it's a, you know, they need to put their driveway there to get to their property, you'll have easements to PG&E or whatever.
Dom (03:23):
The various utilities are. The vast majority of time, all of those are going to be actually recorded documents, they'll be express easements. And then the other kind of easement is the kind that we really do in our line of work. When we get into litigation, they're implied easements, and these are basically easements that are created by the courts. And by created, that's sort of a misnomer they're easements that are I guess you could say blessed by the judge. So just to give you an example of one of them people hear about adverse possession, a lax in adverse possession has nothing to do with an easement. It's really when you can gain ownership over somebody's property by way of satisfying a number of, of requirements. The equivalent of that in the easement space is something called a prescriptive easement. And this is often times what we have in litigation, where somebody obtains a prescriptive easement by using another property for a certain period of time, with their knowledge in a way that's deemed hostile.
Dom (04:27):
So a good example of that would be, if I'm, I'm say growing a couple of trees, I'm growing an orchard on your property, right? And you're living next to me and you know that I'm growing to use on your property. I've been doing it in a manner where I'm not allowing you to get on to that portion of the property. I'm growing my Apple trees. If you have no right to eat the apples, you don't do anything about it for five years. Well, when you try to push me off, eventually I can go back to the court and the court might say, Hey, listen, even though that's not Dominic's property, he's been doing this for so long that I'm going to give him something called a prescriptive easement. So that's one of the various types of implied easements that were able to get going through the court system.
Ryan (05:12):
So if we were neighbors and you're growing these trees on my property and we were cool with each other, and then all of a sudden, let's say seven years down the road, we don't like each other for whatever reason. And I try to like build a fence around your, your trees and say, no, this is all my property. These are mine. You'll be able to go to court and get that probably awarded to you. Correct. That's what it sounds like.
Dom (05:34):
Yeah. Yeah. Potentially. And you know, I'd always share my apples with you, man. But if we didn't do that, we'd be in a situation where, so prescriptive easement, you couldn't, you have to have this element called hostile use. And what that basically means is what it sounds like it has to be done in a manner that's hostile to your Ryan's ownership, interest in the property. If it's not hostile use, that means I can't get a prescriptive easement. So one way to avoid allowing a neighbor or somebody else to obtain prescriptive rights of your property is to give them permission to do it. The moment you give me permission to maintain my Apple orchard, I cannot establish a prescriptive easement. However, that brings us to the other types of implied easements that judges can create. And, and one that might apply in a circumstance like that is something called an equitable easement.
Dom (06:28):
And in an equitable easement is where the court is able to rely on its inherent equitable powers, which basically means the courts allowed to look at all the facts and circumstances and figure out what's fair. So let's assume that I grow my Apple orchard and I am growing just world class apples. I mean, these are the creme de la creme, right? And you see it, you know, not necessarily happy with it, but you say, listen, Dominic, I'm going to give you permission to do so. And I rely on that permission. I keep growing, I'm growing and growing them 10 years later, these are the best apples you could find. You know, they're getting, you know, lots of money per pound of apples and you realize, Hey, listen, I'm going to kick Dominick off there, man. Cause I want to take those apples back. Well, what I would be able to do is go to the court and say, Hey, listen, judge, based on all of the sacks, based on the history of us, the fact that he gave me permission, that I've been relying on that permission. And now I'm looking to lose my, my world famous apples. You should give me an equitable easement to continue growing these apples on Ryan's property. So even though I don't own the property, I get the ability to continue doing what I had been doing. So that's another form of implied easements that the courts can create.
Ryan (07:43):
Hmm. Yeah. That's pretty interesting. I always try to convey it to people who ask me questions because they know I'm a lawyer. So I get this from family and friends too. Like, can a judge really do that? And I think this is one of the areas where, when you're talking about these equitable powers a judge has, yeah. A judge can kind of take a lot of things into consideration and grant this sort of an easement to you and your world famous apples. I know that Yes. I hear a lot of times it seems like most, most times I hear about these easement disputes or neighbors fighting over like access, like you're driving over this road and you're not maintaining it to get with me or something like that. Is that true? That it seems like access to your property lines is like a pretty common easement dispute. Yeah,
Dom (08:27):
I think you're right. I'd say, you know, the two most common types are going to be access disputes. And it's generally generally situations where someone doesn't necessarily realize that their neighbor's been using a portion of their property. And once they realize they want to put an end to it. So we see a lot of those. We also have a lot of disputes when fences are misplaced. That's something that it doesn't happen as much now with, you know, but a lot of older pieces of property that are in the process of being developed. The fences were just put in the wrong spot. They're put off the property line. So what happens in a situation where you and I are living next door to each other and you know, I'm growing my Apple orchard and the fence is on basically my side. So the Apple orchard is all on my side of the fence, but it turns out that's actually your property and you find out about it. You realize, Hey, listen, I want to use all of the property that I'm paying taxes on. I want to move the fence back. Dominic, you can't use that anymore. So the court has the ability to step in there and it oftentimes depend on the circumstances, but the court can say, Hey, listen, Dominic, it sucks for you. But Ryan gets to move the fence bag and he gets to keep what his actual property is. You can't use it any longer.
Ryan (09:46):
So if there was a person out there who wanted to maybe look into their own property and see, you talked about the express so that they went and looked at their, you know, probably that big packet they got from escrow and they bought their house. There's gonna be a grant deed in there and try to look at that legal description stuff and see if there's any or what easements are a part of it. But if there was any sort of, of these implied easement situations, how would a person go about examining their own property and see if there was a potential issue? Is there a way,
Dom (10:14):
Well, there's, there's really, there's not a good way. So generally speaking, if you want to figure out what types of easements affect your property, sometimes, sometimes the grant deed will include it. Sometimes not the best place to look is in the title policy that you purchased when you purchase your property. And hopefully you did that because it's a good form of protection to have for this very scenario. You're talking about where there's an implied easement. So implied easements in spite of their nature, they are not known to people necessarily until the court gives it the court's blessing and the way that somebody can figure out if there's an actual implied easement that affects their property, there would be some sort of judgment from the court that's generally going to be recorded against the property. And generally would show up in a preliminary title reports or title policies. Other than that, though, it's really anybody's guess as to, I mean, as far as I know right now, my neighbor could be asserting some sort of implied easement against me. And I don't know about it because he hasn't taken steps to actually perfect it with the court.
Ryan (11:18):
Hmm. He's going after avocado tree, I think.
Dom (11:21):
Yeah. This year I wouldn't blame him,
Ryan (11:26):
So. Okay, good. So title policies. Yeah. I know people don't really want to read those and it is hard to read. Some of those documents, especially you're talking about legal descriptions, but you know, you may have, there might have been an implied easement dispute 30 years ago. Well, before you bought your property, you know, by two people long time ago that did go to court over it. So I think it's always good to at least take a look in to those documents. You're going to get in escrow when you're, whether you're, you know, when you're buying a property anyways.
Ryan (11:57):
What do you think are the most common easements that you know, that your homeowner might have to deal with?
Dom (12:05):
Well, so, you know, one thing that's gonna affect a lot of people and it's going to be utilities. And for the most part, utility easements, they benefit everybody. I give PG and E's an easement and I get electricity or I get my sewer service or water from East BayMud. What people oftentimes don't realize is what comes with those easements. So you're not just giving the utilities, the ability to run their lines under or over your properties, connect to your house. Let's assume that something goes wrong. The pipes, right? Oftentimes they will have the ability to come in to dig up the portion of your property, where that pipe is to fix the pipe. And they'll try to put the property back as best as they can to make it look the way it was beforehand, but that never happened.
Ryan (12:56):
They're just not going to make it look as good.
Dom (12:58):
Right. And, and, and that's what, that's one of the crazy things about easement is that they don't own your property, but they have the right to use it for whatever purposes the easement says so they can have inquiry. And this is often what we see with access easements or driveway easements, the person who has the easement, which is called the dominant tenement can have really more rights to use that piece of the property than the actual owner of the property, which is called the servient tenement. So it's just one of these funny things. And that's why we'll often see disputes arising out of, you know, misplaced fences or some sort of access over somebody's property.
Ryan (13:40):
So going to these utilities easements, is there a notice requirement? So if, if the water main or some water line is under my front yard and it burst I'm at work and I come home and all of a sudden there's a big trench and a bunch of, you know, East Bay, mud guys out there digging up my yard, do they have to give me notice, that's like kind of an emergency situation, but is there any notice requirements for them to even to use these types of easements?
Dom (14:03):
You know, oftentimes there's not. The good thing about these big public utilities is that they realize there's a public relations aspect to this. So they're generally pretty good about it. But you know, one example where we see that same type of relationship is going to be in oil and gas Wells. So oftentimes you'll have a bunch of farmland say, and somebody will own the surface rights and somebody will own the mineral rights and are often different people. And the people who own those mineral rights will often have, you know, a well pumping, natural gas or oil, whatever it may be and the ability to come onto the property to access their well. Well, they don't have to tell the owner of the property. Sometimes they may be doing major repairs or major renovations. They don't necessarily have to tell the owner before they do so. So that's just, you know, a more glaring example of how somebody who has an easement just how broad their ability is to actually use the property.
Ryan (15:03):
It's funny you bring that up because I've actually dealt with that actually quite a few times with clients where, you know, anytime we do an estate plan, we've got to transfer their real property to their trust. And if they have the clients that have property, like, especially out in the central Valley or towards the foothills, you know, big, big plots of land, that there are so many different easements for oil minerals, all those different ones that, you know, those legal descriptions get pretty long. There's a couple that were like five pages long. I was like, Holy smokes. These are, there's a lot going on just on vacant land. You know, it was just land you drive by on the freeway and think there's nothing going on out there. But actually there's quite a bit potentially so interesting.
Dom (15:40):
There's often a lot going on under the surface,
Ryan (15:44):
Especially in California, right there, there used to be an oil rich place long time ago. I know, I think that's still happening to some degree
Dom (15:51):
Still down in the central Valley and you know, up a little further North in California, you see, you see a lot of those natural gas, especially.
Ryan (15:59):
So if a, let's say a homeowner or just any person with real property has an issue there. They think that a neighbors using their property in some way, or they think that the fence is wrong, something like that. What is their first step?
Dom (16:17):
Well, so the first step, what I tell people when they come in and we meet with them is people generally don't like being an attorney and then oftentimes they'll want to avoid that. So the good thing with these types of easement disputes and real property is that oftentimes they're going to be covered by title insurance. So the very first thing I tell people when they come in is bring a, pick a copy of your title policy, and let's look through that title policy and see if the claim easement is something that would be possibly covered so that your title company can step in and try to address it. So that that's generally where we go first and, you know, worst case scenario, if it's something that's not covered by the title insurance policy, oftentimes these types of disputes are really appropriate for some form of mediation or early dispute resolution. Generally, it doesn't make a lot of sense to go the whole way to trial, you know, cause oftentimes it's going to take two, three, sometimes four years. So that that's really where we start talking to clients when they come in, you know, at that first meeting.
Ryan (17:22):
Yeah. So the trials only for those neighbors who are truly entrenched in their hate with each other,
Dom (17:28):
That happens a lot.
Ryan (17:31):
All right. Great. Thanks Dom. I learned a lot about easements today and I appreciate you joining me today. Any final thoughts
Dom (17:38):
We'd always encourage anybody who has questions about easements, give us a call and be happy to talk about an answer. Any questions people may have.
Ryan (17:50):
Yeah. It's one of those terms that I Think that people have heard, but they don't realize that easements, like you said, in the beginning affect pretty much every piece of real property around, especially around here that, so these easements are applying to you to the, you know, the homeowners, especially, and it's always a good idea, at least understand what they are, how they work in case that there is that issue that pops up in the future. To have a little bit of background on easements. Say, okay, I know what to do next. Let's look at my title policy. That's a good, that's a great piece of advice and what I think. Yeah. I couldn't agree more with that. All right. Well that was Dominic Signorotti, thank you very much for joining me. And this is, I know a lawyer and I'm Ryan Lockhart signing off. Thank you. Bye bye.