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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I am purchasing two parcels of land (closing tomorrow).

Customer Question

I am purchasing two parcels of land (closing tomorrow). Husband X bought these parcels in the 70's and also purchased a right of way easement from owner A that goes to these properties (it is an easement in gross, granted to Husband X, his heirs, personal representatives and assigns - not specific to any dominant land). In 1990's Husband X conveyed the parcels to his wife, and "assigned" this ROW to each parcel (two separate deeds - with ROW being added to the deed that was conveyed). Husband X died in the 2000's. I am purchasing both parcels together with the ROW that was assigned from the wife. My questions is, since he has passed away, is there a way to take ownership of the original easement so that it would benefit me, my heirs, personal representatives and assigns? I plan on purchasing more property around these parcels in the future and would like to be able to assign the ROW to these other parcels.
Submitted: 3 months ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 3 months ago.

Dear Customer,
Thank you for using our forum. My name is ***** ***** I hope to assist you today.

Customer: replied 3 months ago.
Great Bill. I have attached the easement deed for your review if needed.
Expert:  CalAttorney2 replied 3 months ago.

Easements rights (right of ways for example) are attached to the properties they are identified with (they are not personal rights, they are property rights).

Easements cannot be enlarged without agreement of the property owners (so if you own all of the properties involved, you can revise the easement to your needs, however, if the easement affects your property and someone else's, you are going to need their assistance).

I do recommend that you get assistance in revising easement rights if you do control all of the properties in question (I recommend a property attorney over an escrow officer or a title officer - the difference between the two is that an escrow officer/title officer are very good at processes or procedures, but an attorney is going to be able to help you plan the matter through (the "why" behind the easement changes, and will help you address potential problems or issues with the change in the title, this can help you avoid problems (especially if you plan on subdividing the properties).

Customer: replied 3 months ago.
Right of Way Easements typically have a servant land and dominant land. This easement there is only a servant land. I interpret it to be an easement in gross. So it can be enlarged due to the wording in the deed. Please review the second paragraph of the deed of easement.
This person has died so it seems his heirs can still use this easement. Is there a way to transfer rights of the easement to someone else so their heirs, personal representatives and assigns can benefit from it.
Expert:  CalAttorney2 replied 3 months ago.

The dominant parcel would be the parcel that benefits from the right of way (so the access path has to provide access to some other property - this other property is the "dominant parcel").

The easement will transfer to the heirs automatically at death. There is no need to create any specific language for this - the only time specific language is used is when there is what we call a "life estate" and the individual is the only one that gets to use it and it does not pass to the heirs.

I cannot review/interpret specific documents for you on the forum (that is the formal practice of law and you need a local attorney to do this for you. I can answer general questions for you regarding property law and easement issues, but I cannot advise you on the specifics of your matter, you need a local attorney to do this for you.