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Appurtenance v. Encumbrance
Recently I was involved in a discussion with a Public Agency staff member who was concerned about an easement being an appurtenance or an encumbrance. He was a little unclear of the two definitions. After a brief attempt on my part, to talk “leagaleze” I resorted to putting the terms in human form.
Using an example of a hiker on the trail, I put it like this: A hiker, on a hike, carries a backpack full of stuff he may need. The backpack is an appurtenance,
NOW, that same hiker has to carry a backpack full of his Buddies stuff. That backpack is an encumbrance. Some encumbrances are legal, while others may be illegal or “undocumented”
ALSO, in the case of say. . . . . an easement for travel, which is 20 feet wide, being 10 feet on each line of a property line, is BOTH an appurtenance AND an encumbrance. Both property owners are encumbered by the 10 foot use on their own property, but enjoy the 10 feet on their neighbors.
Without siting numerous law cases, I am hoping this simple explanation help define the root of appurtenances and encumbrances.
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3 Replies
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Excellent analogy. I would refrain from using ‘illegal’ (against the law) as equivalent to ‘undocumented’.
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I had to return to a boundary survey today where all the two neighbors had to do was to sign a common driveway agreement for one to sell his property and move on to his new position as pastor of a church near Austin, Tx.
His neighbor never showed up to sign the agreement and refuses to do so.
After many attempts to please his neighbor, the pastor has added sufficient material on his property and has excavated a strip of the original driveway along and a couple of feet on his side of the property line.
If this does not allow the new buyers to obtain a Title Policy, his next step is to build something that would resemble a bridge barricade between the properties.
This goes to show that some people do not want to be under an appurtenance or an encumbrance to help themselves out in the long run.
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Dominant tenement = appurtenant = together with
Servient tenement = encumbered = subject to
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