Browse Proptionary encyclopedia

Build your real estate vocabulary to be able to communicate and invest more effectively and professionally.

Dominant Tenement

DEFINITION

Party that has the legal right to an easement of the land of another property owner.

EXPLANATION

A dominant tenement is the party that has the right to use an easement, therefore to understand a dominant tenement one must understand an easement.

An easement is the gained legal right of a land owner or the public to use another landowner’s property for a specific purpose. An easement gives the right of a non-owning land user to use a landowner’s land for a particular use. This easement is typically a legal right gained by a non-owning landowner for traveling to one spot where the use of the landowner’s land is necessary.

For example, it is common for a landowner to divide a large piece of land into multiple parcels, while all parcel owners use one main road to enter and exit the property. All residents of the divided land have the same equal right to access the road to get to their homes, even if the main road enters a portion of one of the property owner’s property. This easement gives the landowner the right to travel over another landowner’s property in order to reach his or her own property.

Parties of An Easement and Easement Details

The land on which the easement lies is called the servient tenement, while the land that is benefited by the easements is called the dominant tenement. Even when the property is sold, the easement continues, thereby passing to the buyer. An easement appurtenant is defined as an easement that “runs with the land.”

The only way this kind of property can belong exclusively to one person is if, in the deed, it specifies an easement appurtenant. This type of easement benefits only one property owner, much to the detriment of the other. Like other types of easements, an easement appurtenant transfers with the sale of land.

Example

Jon owns land and has a neighbor named Kendrick. In order for Kendrick to get to the reservoir, he needs to drive or walk through a portion of Jon’s land. Jon grants Kendrick an easement to use the road to get to the reservoir. In this case Jon is the servient tenement, while Kendrick, who has the right to use the easement, is the dominant tenement. Although Kendrick has the right to use Jon’s land, his rights to the easement are not owed by Kendrick, rather they are owned by the property he owns. If Jon sells his land, Kendrick will still be entitled to the easement. Similarly, if Kendrick sold his house, the new buyer would have the right to the easement transferred to them.

How an Easement is Established

There are various ways in which easements can be created. The creation of an easement ranges from necessity, agreement, to temporary use.

Basic Elements of an Easement

Servient tenement is clearly defined.

Dominant tenement is accommodated to.

Dominant and servient tenement holders are different parties

Easements can be created in the following ways:

Contract: Created by a written agreement between parties. For example, imagine two neighbors live near a fish pond, and one of the neighbors technically owns the land that contains the lake. The two parties can make an agreement that allows the neighbor who does not hold the land with the lake to access the property to gain access to the lake.

Public Use: The government has the right to seize a portion of land and claim it for the good of the public. An example of this may be for the public to gain access to a road or to use a portion of the land for an exit route from the highway.

Deed: Imagine a landowner with a 10-acre parcel of land sells two acres of the land. When the buyer of the two-acre portion of the land needs to access a well near the property he or she must use the selling owner’s land to get to the well. In this case, the deed may indicate the right of the buyer to access a specific portion of the original landowner’s property to get to the well.

Law: The law may determine that an easement is necessary for an adjoining landowner or the public.

Long Use: If a landowner has been using his adjoining neighbor’s property for a specified period of time, typically longer than three years, the long use of that land could establish the creation of an easement right.

Purpose of Easement

An easement grants one party the nonpossessory right to enter and/or use a property without having title to that property. (This does not include the right to inhabit the property.) The party with the nonpossessory right is known as an easement holder.

Easements are often used between neighbors, including as a means of allowing a neighbor to enter and vacate his or her land.

For example, say a property owner has a piece of land that encompasses a long driveway leading to a neighbor’s house. The property owner may grant an express easement for that driveway so that the neighbor can freely drive to his own property.

An easement holder may only use the land for the purpose intended by the easement. He or she is also responsible for maintaining the portion of the property being used. This includes the cost to maintain, repair, or update the easement to keep it in safe condition. Should there be multiple easement holders, the responsibilities and costs will be split among them.

If a property owner alters his or her property, the changes cannot affect the easement holder’s right to use the land. However, an easement may be reasonably adjusted to accommodate alterations to a property.

The property that “benefits” from an easement is known as the dominant tenement. The property that “grants” the benefit of an easement is known as the servient tenement.

Case Law As It Relates to Dominant Tenement

Case Review: Vanklompenberg v. Berghold (2005)

The case, Vanklompenberg v. Berghold (2005) 126 Cal.4th 325., involved a dispute amongst landowners over an easement right.

A property owner (Vanklompenberg) lived at the end of a private roadway. This roadway passed through the property of Vanklompenberg’s neighbor (Berghold).  As the roadway was the only permanent means of Vanklompenberg accessing his property, he was granted an easement from Berghold to use the roadway.

At some point, Berghold claimed that several robberies had recently taken place on his property and that he had continually seen trespassers. He also claimed to have witnessed illegal dumping on the property. Consequently, Berghold installed two locked gates across the roadway to Vanklompenberg’s property in order to prevent future illegal activity. Berghold provided Vanklompenberg with a set of keys to the locked gates, but Vanklompenberg wanted the gates to be removed. Berghold refused. Vanklompenberg sued for a violation of his easement rights.

Although Berghold did not deny violating the easement, he argued that he had the right to install the locked gates in order to protect his property. The Superior Court did not agree. It argued that the language of the easement required the roadway to stay open and unobstructed. It ruled in favor of Vanklompenberg. Berghold appealed. The Court of Appeals upheld the lower court’s ruling.

[quiz-new]