Servient Tenement: Definition, Rights & Examples

Servient Tenement
Servient Tenement

In land law, easements are permanently attached to real estate and are different in nature.  Land subject to an easement is known as servient tenement, estate or parcel.

What Is Servient Tenement?

Servient Tenement is a plot of land that is subject to an easement and benefits another plot of land. 

An easement is a privilege or right that the owner of one piece of real estate (called a dominant estate or dominant lease) has over another piece of property (called a service lease), and the owner of the servient property is obligated not to interfere with that privilege.  The most common servitudes are access roads.

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How Does Servient Tenement Work?

When people buy real estate with an easement, the real estate agent must disclose this.  If the property has an easement attached to it, making it an official residence, the estate agent can provide information about the nature of the easement and when it was established. 

If the dominant has the right to use an easement on another real estate object, information about this should also be provided.  Sometimes information about easements is hidden or hard to find, so it’s a good idea to read title searches and other property research carefully.

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What Is Servient Tenement In Real Estate?

Service estate is a plot of land covered by an easement.  Dominant apartment buildings may use benefits such as utility easements, public access easements, etc. 

Without an easement, the functionality of a dominant apartment building can be radically altered, perhaps most notably in cases where the property does not have access to a public road.

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How Does Servient Tenement Work In Real Estate?

Although the dominant estate enjoys the right to use the easement, it does not enjoy the right to use the remainder of the easement. 

In the example of a property with a road easement, for example, people cannot drive off-road on the property because the easement only extends to the established road. 

There are also certain rules for maintaining the easement, as well as common sense and good behaviour to maintain friendly relations with people in the community; although access to the easement is guaranteed by law, bad blood between neighbours can lead to messy situations.

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What Is Servient Tenement Easement?

An easement is “a title to land held by another person that entitles the owner of such interest to a limited use or enjoyment of the land in which the title exists.

It protects owner from third parties against interference with such use or enjoyment. It is not subject to the will of the owner of the land and may be created by conveyance.

To create an easement by express grant, there must be a written document containing plain and direct language demonstrating the grantor’s intention to create a right in the nature of an easement rather than a license.2

Easements can be created in four ways: by written grant, by prior use, by necessity, and by prescription.  When the dominant estate is transferred, the easement passes to the next owner through the appurtenance clause, even if the deed does not specifically mention the easement.

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What Are The Benefits Of Servient Tenement Easement?

An easement gives its owner a non-property interest in someone else’s real estate.  In other words, it is an interest in real property that allows the easement holder to use the land in a certain way, but it usually does not allow the easement holder to exclude others from the land or occupy the land. 

For potential homeowners, easements are an important factor when negotiating purchases price and determining the extent of ownership.  Sometimes an easement is appurtenant to land, meaning that it benefits a particular piece of land.

In contrast, an easement is considered “gross” if it benefits a person personally and not a specific piece of land.  The land that is encumbered by the easement is known as the servient estate, while the land that receives the benefit is the dominant estate.

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What Is Dorminant And Servient Tenement? 

Easements, especially those relating to land, are often created by a written document that follows the same formalities as any creation of title to land.  Easements are often affirmative because they allow the owner to use someone else’s land. 

However, there are also negative easements that allow the owner to retain their access to sunlight or another aspect of the property by limiting what can be done on someone else’s adjacent property. 

For this type of easement, it is important to know whether it extends to the land.  A dominant easement in this case may be able to stop the servient property from renovating or building additional structures on the property that block water views or from planting plants that block light.

What Are Servient Tenement Rights?

Abandonment

Although an easement can arise in a variety of ways, any easement can be terminated by a waiver of the easement by the owner of the dominant property. 

In order to prove a waiver, it is necessary to establish not only the intent of the dominant property owner to waive the rights to the easement, but also some express act or omission which means that the owner does not claim or retain any interest in the easement. 

However, the deed must clearly indicate intent to relinquish the easement and clearly demonstrate that the dominant property owner is permanently relinquishing all rights to the easement, rather than merely relinquishing it for some temporary period.

Mere non-use is not sufficient to constitute a relinquishment, even if for a long time.

Merger       

The easement granted may be terminated by merger.  Under the merger doctrine, an easement is terminated when the dominant and servient estates pass to the same person. 

To satisfy this, there must be complete unity of dominant and servient ownership, meaning that one person or entity owns the entire parcel of land. 

When only a portion of the servient or dominant property is acquired, there is no complete unity of ownership. 

Thus, the easement still exists. In other words, for such cancellation of the easement to occur, all of the encumbered property and all of the dominant property must be owned by one person.

End of Necessity

Easements created by necessity terminate when the necessity ends. The most common example of an easement by necessity will illustrate the difference. 

Imagine that a landowner has a fairly large piece of land and decides to divide it into lots, and one of the lots that the owner creates is completely landlocked within the other lots. 

As the owner sells these lots, the sale creates an access easement over those lots, allowing the landlocked lot owner access to the highway.  This is an easement of necessity. 

Even if there is no agreement on the right of access, the owner who needs access is entitled to it.  But when a new means of access appears and the original necessity disappears, the landowner loses the right of access.

Recording Act

A bona fide purchaser for value is not bound by an easement that was not properly recorded prior to the acquisition of the encumbered property.

An easement is not terminated notwithstanding that the easement was not recorded if the bona fide purchaser had actual knowledge and notice of any facts which could induce a reasonably prudent buyer to make a request.

Abuse

Abuse of easement rights is not grounds for terminating the easement. 

Mere use of an easement for an unauthorized purpose, excessive or improper use, or temporary abandonment of the easement is not, by itself, sufficient to constitute an abandonment that terminates the easement.

This does not mean that the servient owner of the property has no remedy.  , but the destruction of the easement is not such a remedy.

Condemnation

The government can create an easement by condemnation.  However, Strnad v. Brudnicki notes that a government agency can also cancel an easement by condemning it.

This can take many forms, depending on the facts of the situation.  One such fact may be a situation where the government condemns a parcel of land subject to an easement in favour of an adjoining property owner, and the government cancels the easement by condemning him.

Adverse Possession

Adverse possession can terminate an easement.  For example, in Spiegel v. Ferraro, the Court of Appeal discussed a situation where there was a certain driveway that was the subject of an easement. 

However, the encumbered owner of the estate fenced off this access road and patrolled it with guard dogs. The court found that after 10 years of such fencing, the land was now free from the burden of the easement.

Conclusion

Generally, easement holders have the right to do whatever is reasonably convenient to fully implement the purpose of the easement, but only so long as it does not place an undue burden on the easement property. 

Similarly, the owner of the servient estate can use the land in any way that does not interfere with the use of the easement by the dominant estate.  What is considered an unreasonable obstacle depends on the situation.  For example, in the case of an access easement, changing the dominant property from residential to commercial may unreasonably increase the amount of traffic.

The value and use of both dominant and service real estate may depend on the existence of an easement.  For example, when you are buying an office property, it is very important to know if the neighbor has a beach access easement. 

If the only access to the beach is near the house, having an easement can reduce your privacy or limit your ability to remodel.  This can affect the amount you pay for the home.

Servient Tenement FAQs

How Does Merger Doctrine Work?

The easement granted may be terminated by merger.  Under the merger doctrine, an easement is terminated when the dominant and servient estates pass to the same person.  To satisfy this, there must be complete unity of dominant and servient ownership, meaning that one person or entity owns the entire parcel of land.

How Does Easement’s Abandonment Work?

Although an easement can arise in a variety of ways, any easement can be terminated by a waiver of the easement by the owner of the dominant property.  In order to prove a waiver, it is necessary to establish not only the intent of the dominant property owner to waive the rights to the easement, but also some express act or omission which means that the owner does not claim or retain any interest in the easement.

Can You Extinguishing Servient Tenement Easement?

Abuse of easement rights is not grounds for terminating the easement.  Mere use of an easement for an unauthorized purpose, excessive use or misuse, or temporary abandonment of an easement is not, by itself, sufficient to constitute an abandonment that will result in the termination of the easement.

References

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