Good morning Wheelema-ga!
I have done quite a bit of research on your question and have found
the following information for you.
First of all, the definition of an easement, just so you might better
understand, is an interest in land owned by another person, consisting
of the right to use or control the land, or an area above or below it,
for a specified limited purpose.
The land benefiting from the easement is called the dominant land; the
land burdened by the easement is called the servient estate.
Unlike a lease or a license, an easement may last forever, but it does
not give the holder the right to take, posse, take from, improve or
sell the land.
Source:
Blacks Law Dictionary, Bryan A. Garner, Editor in Chief
West Group, 2001
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California is a federal-land state. Lands were generally bought from
the government or from other individuals. For lands purchased from
other individuals, consult the local county recorder's office,
generally in the county where the transaction took place. You can
contact the Riverside County recorder's office at:
Riverside County Clerk
2724 Gateway Drive
P.O. Box 751
Riverside, CA 92502-0751
Telephone: (909) 486-7000
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I will break down your questions individually so that I may clearly
answer each for you to make this more understandable. There?s a lot of
information here, so I want to make sure it?s not overwhelming..
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1. "The land has been sold repeatedly since the easement was granted…"
Because the easement is a restriction on the deed of the property,
the easement remains in effect even when the land changes ownership.
Source:
California Commercial Real Estate Law
( http://www.weblocator.com/attorney/ca/law/b18.html )
The access easement "belongs to" the land, not to the neighbor.
Whoever buys the property, will own the easement.
Source:
Real Estate Law
( http://real-estate-law.freeadvice.com/ )
The landowner who grants an easement usually cannot build structures
within an easement area or use fencing that would hinder access. Other
activities might also be prohibited. Before you purchase property you
should know where all easements are located and what restrictions are
associated with them.
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2. "Can the easement be erased now that the well is to be abandoned?"
First of all, it depends on how the specific easement is worded. For
this part of your question, I recommend seeing a lawyer so that can
give you situation specific advice. However, let me give you some
general information about California easements.
Easements may be extinguished or terminated in several ways,
including express release, legal proceedings, nonuse of a prescriptive
easement for five years, abandonment, merger of the servient tenement
and the easement in the same person, destruction of the servient
tenement, and adverse possession by the owner of the servient
tenement. An easement obtained by grant cannot be lost by nonuse.
Source:
University Of California - Easement Practice Guidelines
(http://www.ucop.edu/facil/resg/easemtguid.html )
Don't assume that because an easement is not currently being used it
will never be used. As long as an easement is a part of your [the]
deed, there is always a possibility that the individual who benefits
from it will decide to enforce it.
Source:
Real Estate.com
http://www.realestate.com/learning-center/finding-a-home/facts-about-easements.asp?source=&siteid=&esourceid=&partner=realestate
Since I am not a real estate attorney in your state, please take the
time to talk to one to find out how and when an easement can be
terminated.
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3. "Can the easement be sold apart from his property?"
This is a sample story (See below ***) I found on the net about
selling an easement while still occupying the property. This applies
to a Conservation Easement, which is defined as:
"... a restriction placed on a piece of property to protect its
associated resources. The easement is either voluntarily donated or
sold by the landowner and constitutes a legally binding agreement that
limits certain types of uses or prevents development from taking place
on the land in perpetuity while the land remains in private hands."
Source:
The Nature Conservatory
(http://nature.org/aboutus/howwework/conservationmethods/privatelands/conservationeasements/
"Ownership of the land includes rights to the soil, minerals, water,
trees and vegetation on it. These include the rights to grow and
harvest crops, trees, and to develop or transfer ownership of your
property. An easement puts a restriction on the use of these rights."
Source:
Mont Vernon Conservation - Protecting Your Land
( http://conservation.mont-vernon.nh.us/protection.html )
Once again, without seeing the specific easement, I cannot guarantee
anything, which is why I recommend seeing a lawyer in your area.
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(Sample story***)
For eight generations, the Bell family has lived and worked on Tide
Mill Farm, an active saltwater farm of 1,500 acres in Whiting. The
Bells wanted to keep working their land and have their children do the
same. Like so many Maine families, though, they were land-rich and
cash poor. "Allowing for traditional use of the land and for the
family heritage to remain intact made it hard to survive financially,"
explains Terry Bell." But we realized that to hand our children the
legacy of this place as we know it has a real value beyond any amount
of money."
As much as they wanted to protect their long-time homestead, the Bells
could not afford to donate a conservation easement. After meeting with
Quoddy Regional Land Trust (QRLT) and Maine Coast Heritage Trust, they
realized there might be an opportunity for selling an easement. The
land trusts proposed the project to Land for Maine's Future (LMF), a
state program established in 1987 and funded by two public land
acquisition bonds totaling $85 million. "Competition for LMF funding
was fierce," recalls QRLT executive director Alan Brooks. "Our faith
in Tide Mill Farm's superlative scenic, ecological, and recreational
values was borne out when the project scored near the top of LMF's
statewide rankings."
The LMF Board voted to purchase a conservation easement on Tide Mill
Farm that protects its scenic store front vistas, diverse wildlife
habitat and traditional public access. The fields, woodlands and tidal
flats offer critical habitat for black bear, moose, deer, shorebirds,
seals and two nesting pairs of American bald eagles. Under the terms
of the easement, visitors can hike, picnic, ski and hunt on portions
of the property that do not intrude on the farmstead where the Bell
family continues to maintain their working farm and woodlot."
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4. "What kind of attorney to look for if and when our finances improve."
The type of lawyer that would best suit your situation would be one
that focuses on water and land use issues or ones that advises clients
and litigates matters brought under the California Environmental
Quality Act ("CEQA"), water supply laws, and other water and land use
laws.
Most real estate lawyers will not answer legal questions such as yours
without a retainer agreement. If you truly cannot afford an attorney,
you may qualify for legal aid. You should call your local bar
association to look in to it. In addition, I will include some links
to lawyers that may offer a low cost or free initial consultation.
http://lawyers.findlaw.com/lawyer/practice.jsp
http://www.realestatelawyers.com/index.cfm?source=GRealEstateLawyer
http://phonebook.superpages.com/yellowpages/C-Real+Estate+Attorneys/S-CA/T-Los+Angeles/
I hope I was able to answer all your questions. I know this seems
like a lot of information to digest and I wish you the best of luck.
If this answer requires further explanation, please request
clarification before rating it, and I'll be happy to look into this
further.
Nenna-GA
Google Answers Researcher |
