Easement by Estoppel

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Easement by Estoppel

A title search can expose you to a snag if you have an easement, which allows another party to use a portion of the property or the whole property. Home buyers don’t necessarily have to worry about easement by estoppel, even though they can be complicated. Read on to learn more about this real estate issue.


Easements: What Are They?

One entity can use another individual’s property for a specific purpose by granting an easement, a nonpossessory property right. Upon granting an easement, the holder becomes legally entitled to access to the property for a specific purpose and time as defined by state law, as defined by the easement.

To comply with easement terms, the “dominant estate” must give up a portion of their land. Whereas the “servant estate” benefits from the easement. An easement may cover a piece of property, so utility companies may work on it or gain access to another piece.


Is There A Purpose For Them?

Easements are pretty standard, even though it may seem strange that someone else has legal rights to your property. For example, utility companies have easements to connect their lines to their properties. Some subdivisions or urban areas may have easements that allow neighbors to share driveways.

Coastal property owners may have easements that allow neighbors (or the general public) to use a beach on their premises or a path to the beach that crosses the property. Easements may also allow vehicle access to and from public roads.


Different Types of Easements

Generally, easements fall into three main categories: appurtenant, gross, and prescriptive. Here’s an explanation of what each category means legally and how it works.


Appurtenant easement

Unlike other easements that remain in place regardless of ownership changes, appurtenant easements are permanent and last for as long as the property does.

There are two neighboring properties involved in an appurtenant easement. The dominant estate or dominant tenement gets access to another. The servient estate or servient tenement gets access to another. The servient estate’s deed should include the easement appurtenant and the dominant estate’s deed.

For example, imagine you live in a community where half of the homes are on the lakefront, while the other half does not have access. By setting up an appurtenant easement along the edge of your lakefront property, your neighbor who does not live on the lakefront can gain access to the lakefront.


Easement by Necessity

Easements by necessity are subcategories of easements appurtenant. While accessing the lakefront may be a luxury, there are other situations in which property access is necessary.

Imagine you own a two-acre property. It consists of two homes on side, a forest, and a public road. When you decide to take care of your aging parents, you move them onto your property. However, for them to remain independent, you sell them the front acre and your house.

If you build a new house on the back acre, the property deed needs to include a clause outlining an easement by necessity that will allow you to use the driveway your parents now own to access the main road from your house. The easement can be legal even if it does not appear on the record.


Gross easement

In general, easements in gross are the most common. Utility easements fall into this category as well. Utility companies might have an easement over your property for water, sewer, gas, phone, cable, or power lines. There are also gross easements for stormwater drainage channels and flood culverts.

There are two types of easements: gross easements, which only affect one property and grant access to a specific entity, such as the power company, and servient easements, which affect several properties.


Changes in ownership.

Like an appurtenant easement, gross easements don’t always stay with the property when ownership changes. In practice, they often do. If you sell your house, a buyer likely won’t get the power company to relinquish its easement over the power pole in your yard.

On the other hand, public utilities tend to be an exception to gross easements because a gross easement inherently does not allow access transfer to another entity. Likely, the new power company will still have access to your backyard pole if the old company changes ownership, just like the old company did before.


Estoppel: What Is It?

A legal principle called estoppel prevents a person from asserting a right or arguing something that contradicts what they have previously expressed or agreed to. The concept of estoppel, part of common law, prevents people from being wronged unjustly by the inconsistencies in the words or actions of another person in the past.

It prevents a person from contradicting what they have previously done or said. A collateral estoppel and a promissory estoppel are two common types of estoppel.


Estoppel definition real estate

The two kinds of estoppel typically involved in real estate transactions are association estoppel and tenant estoppel. We’ll focus on associating on an office document issued by the homeowner’s association, condominium owners’ associations, or an association of interest community. It includes all outstanding fees or penalties due on an exact date.

The term is typically used to describe HOA property in Florida. However, each state has its rules governing how associations and management companies communicate to prospective residents regarding their assessments, fees, by-laws, and other vital information.

The estoppel notice is a legally binding document. It contains the dues assessment, fees, and other costs you must pay. After closing your company as the new owner, you’ll receive it from the association or its management firm. It also lists what the owner of the association is owed.

In many States, a law is in place that prohibits an association from imposing additional charges after the closing date if they have this form of document. The statutes can be “stopped” from returning to their word when they charge the client additional fees. In the USA, if there’s a mistake in the official part of your estoppel form, the state has to follow the state’s statutes. They have to fix it within a specific timeframe. If they do not, the letter will be legally in force.

If this is not done, the buyer or investor could be held accountable for unpaid fees from previous owners. The home purchase at an HOA auction might seem attractive, but it could incur unexpected costs if due diligence in real estate needs to be carried out.


Estoppel: How it Works?

The standard law system relies on judicial decisions and precedents rather than legislation and statutes. Most of the legal system in the United States relies on English common law. A standard law system developed in the country until it established precedents that would shape its legal system.


Estoppel: How it Works?


As a rule, all countries with a common law judicial system, including:

  • The United Kingdom,
  • Canada,
  • In the United States,

They have incorporated the estoppel doctrine into their laws in multiple forms. Consistency in words and actions is a familiar concept that differs from country to country.


Contradictory claims

It is important to note that estoppel prevents people from making contradictory claims or actions based on past statements or actions. A person’s estoppel ensures they stay true to their words and does not unfairly damage someone else.

It is, therefore, important that Person A adheres to their word if they renege on a promise made to Person B. This is where estoppel comes in. There are several types of estoppel, but the most common are listed below.


Easement by Estoppel Meaning

What is easement by estoppel? An easement estoppel occurs when the conduct of a landowner leads another to believe that they have a right to the land, resulting in the act of acting or refraining from acting on that belief.

It is necessary for the person who wishes to create an easement by estoppel to show that a representation was made to the promisee, believed by the promisee, and relied upon by the promisee.

For example, a seller may create an easement by estoppel if the buyer relies on the seller’s representation that an easement exists in favor of the premises to purchase over the seller’s other realty. Still, the easement is not mentioned in the conveyance later on.


The detriment of an easement

It is necessary to demonstrate some detriment to the person relying on an easement to create an easement by estoppel. It is possible to determine the detriment of an easement by considering the surrounding circumstances, including the effect it will have on the easement users.

As an example, a California case law describes the elements of easement by estoppel as follows:

There are a few elements to show regarding the party that lost:

  • Conduct that conveys the impression that the facts are inconsistent with what the party subsequently asserts, or that false representations abound, or material facts remain hidden;
  • The other party intends, expects, or reasonably anticipates that the other party will act in response to that conduct;
  • Having a clear understanding of the truth.

Those asserting estoppel should demonstrate the following:

  • ignorance of the truth about the facts in question, as well as the means of finding out the truth;
  • relying on the party estopped’s conduct and
  • Actions resulting in an adverse change in his position.


A Comparison of Easements by Estoppel and other Easements

Easement rights are rights to use another person’s property for a specific purpose. There are several types of easements, and each is unique. Here are some easement by estoppel example of the differences between easements by estoppel and other types:


Estoppel Easement:

  • When a landowner mistakenly represents or acts in a way that makes another individual believe they have a right to use an individual’s property, that individual relies on the representation or acts to their detriment.
  • There is usually only a limited period during which an estoppel can last.
  • Neither party needs a written agreement; it depends on their conduct and representations.
  • Estoppel ends when the conditions that created it are no longer present.


Prescription Easement:

  • It results from the continuous, open, notorious, and adverse use of another’s property without permission for the statute’s duration.
  • It can become permanent if used uninterrupted for a certain amount of time.
  • It doesn’t require a written agreement; it relies on the user’s long-term actions.
  • In either case, the owner can terminate the use or give permission, negating the “adverse” element.


Easement by Necessity:

Initially, this occurs when there is a need to access public roads or other essential services, but the land is landlocked.

  • The necessity lasts for as long as necessary.
  • This happens when a larger parcel of land splits and one parcel is inaccessible.
  • A necessity (such as road access) ends when it is no longer needed.


Easement by Grant:

  • A written document that grants another person the right to use a portion of a property.
  • Grants can be permanent or temporary (for a defined period).
  • Deeds or agreements must be in writing.
  • When either party agrees to terminate it, the grant ends.


Easement by Implication:

  • Not explicitly created but implied by the parties’ actions or circumstances.
  • The implied terms determine the price.
  • Originates from the property’s past use and the parties’ intentions.
  • Changes in circumstances or mutual agreement can cause the relationship to end.


There Are Several Benefits To An Easement By Estoppel:


Protection of Reliance Interests:

A landowner’s representations or actions may lead to an easement by estoppel. This can lead to unfair disadvantages for those who rely on that representation.



This flexibility can prove helpful in situations where formalities haven’t been held, as some easements by estoppel require written documentation or an established duration of use.


Promotes Good Faith:

The easement by estoppel promotes good faith dealings by recognizing rights based on reasonable expectations of parties and discourages landowners from engaging in deceptive or inconsistent conduct.


Potential for Resolution without Litigation:

In the face of the threat of recognition of an easement by estoppel, parties might be more inclined to settle disputes amicably rather than litigate.


Temporary Nature:

A land-use easement by estoppel usually only lasts as long as the easement’s conditions remain in effect, so it can temporarily solve a land-use issue without affecting the title permanently.


Estoppel’s limitations:



Parties may be uncertain about an easement’s exact nature, scope, and duration due to a lack of formal documentation or verbal representations.


Potential for Disputes:

In light of the subjective nature of reliance and detriment, it is possible to dispute the validity of easements by estoppel.


Not Permanent:

For those seeking a long-term right to use a property, its temporary nature can be a limitation.


Reliance on Detriment:

It can be challenging to prove that the party claiming an easement by estoppel has suffered any detriment for their reliance on the easement.


Potential for Abuse:

Some people may attempt to gain a right to use another’s property by claiming an easement by estoppel without any legitimate grounds.


Limitations on Transfer:

The easement by estoppel is usually personal to the parties involved and may not be transferable like some other easements.


Get Legal Advice on Property Transactions

In most people’s lifetimes, purchasing a home is one of the most expensive transactions they will ever make. So, it is essential that both the buyer and seller understand their rights as a homeowner. California real estate lawyers at Attorney Real Estate Group advise California residents on home purchases, which include conducting a title search to determine whether an easement by estoppel or other encumbrances exists.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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