California Partition Law Blog
In California, easements are legal rights that allow one party to use another party’s property for a specific purpose, without transferring ownership of that property. Easements are be created through express or implied agreements, long-standing use, or necessity. They are commonly used to grant access to driveways, utility lines, or for other specific purposes like drainage. The easement’s use and scope heavily rely on whether the easement is an easement in gross or an easement appurtenant. Understanding easements, how they are created, and the differences between easements in gross and easements in appurtenant is crucial for property owners to ensure their rights and obligations are clearly defined and upheld.
What is an Easement?
Easements are nonpossessory rights to use or enjoy someone else’s land. This means that easements grant the holder a limited privilege to perform certain acts on someone else’s land without possessing it. (Batta v. Hunt (2024) 106 Cal.App.5th 295, 304-5.) The easement obligates the person who possesses the land not to interfere with its authorized uses. (Main Street Plaza v. Cartwright & Main, LLC (2024) 194 Cal.App.4th 1044, 1053-54.)
Easements are created in four main ways: (1) Expressly; (2) by Implication; (3) by Prescription; and (4) by Necessity. (Civ. Code, § 1104.)
- Express Easements: Express Easements are created through written agreements, commonly a deed, that explicitly grants or reserves the easement. (Romero v. Shih (2024) 15 Cal.5th 680.) Express Easements may also be created through executed oral agreements. (Rubio Canon Land & Water Ass’n v. Everett (1908) 154 Cal. 29, 32-35; Churchhill v. Russell (1905) 148 Cal. 1, 2-4.) Courts recognize and enforce easements created through executed oral agreements when the seller orally agrees that the buyer has an easement over the land but fails to convey the easement expressly through a deed, while the buyer uses and improves the easement under the terms of the oral agreement. (Wilkes v. Brady (1927) 84 Cal.App. 365, 368.)
- Implied Easements: Implied Easements typically involve division of land and form when the following conditions are met: (1) the property owner transfers or conveys a portion of their property to another; (2) the owner previously used the property in a manner that both parties must intend to or believe will continue; meaning both parties know of the existing use or the existing use is “…so obviously and apparently permanent that the parties should have known of its use” and (3) the easement is reasonably necessary to the lands use and benefit. (Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1420.)
- Prescriptive Easements: Prescriptive Easements arise out of adversely possessing the property for a certain period. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1092.) “Adverse Use” means the party claiming the easement’s existence used the property without the owner’s explicit or implicit permission. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252.) Parties claiming existence of prescriptive easements must prove that they have used the property for the five-year statutory period, and the use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. (Main Street, supra, 194 Cal.App.4th at p. 1054.) Prescriptive easements require proof of adverse possession to ensure that property owners had an opportunity to protect their rights by taking legal action to prevent the land’s wrongful use that they ultimately failed to use. (Husain v. California Pacific Bank (2021) 61 Cal.App.5th 717, 726.)
- Easements by Necessity: Easements by Necessity are created when property is landlocked and requires use of another’s land for access. (Thorstrom, supra, 196 Cal.App.4th at p. 1419-20.) Parties claiming existence of an easement by necessity must only show that the easement was reasonably necessary to the property’s beneficial enjoyment, meaning the easement does not need to be strict or “the only possible way” of using the land. (Ibid.; Rees v. Drinning (1994) 64 Cal.App.2d 273, 278; see also Owsley v. Hamner (1951) 36 Cal.2d 710, 719.) This type of easement is limited to the amount of access necessary to allow the landlocked party to reasonably use and enjoy their land.
What are the Types of Easements?
The two distinct types of easements are Easements in Gross and Easements Appurtenant. Each type carries its own characteristics, benefits, and implications.
Easements in Gross
An Easement in Gross is a personal right to use someone else’s land. (Moylan v. Dykes (1986) 181 Cal.App.3d 561.) Easements in gross do not attach to a particular piece of land and they do not transfer with the land when it is sold or conveyed. (Ibid.) This type of easement is most used for purposes, like utility lines, where the benefit goes to a person or entity instead of the parcel of land. (Ibid.)
Creation of easements in gross generally require written agreements, although courts can recognize implied easements under certain circumstances to avoid injustice. Easements in gross can be created for a specific period or indefinitely, and in some cases easements in gross are written to last forever unless a specific event occurs. (Eastman v. Piper (1924) 68 Cal.App. 554.) Generally, the party using the property through an easement in gross is responsible for performing maintenance related to their use, however, because easements in gross heavily rely on written agreements, including clear and specific terms is crucial to avoid disputes.
Easements Appurtenant
An Easement Appurtenant is a nonpossessory interest in someone else’s land that benefits one piece of land while burdening another piece of land. (Cushman v. Davis (1978) 80 Cal.App.3d 731, 735.) The benefitted piece of land is called the Dominant Tenement, and the burdened piece of land is called the Servient Tenement. (Ibid.) Unlike easements in gross, easements appurtenant attach directly to the land and automatically transfer with the dominant tenement when it is sold or conveyed; this means the easement appurtenant permanently attaches to the property. (Ibid.) Common examples of easement appurtenant include rights-of-way to access a property that doesn’t have direct access to a public road, a shared access route or driveway between neighboring properties, a right of way to access a utility line, a right of way to allow parts of a building, like a balcony or awning, to overhang into a neighbor’s airspace, or a right-of-way to access a shared water source like a well or pond.
Easements appurtenant are created through written agreements and must be properly recorded to ensure enforceability. To minimize chances of disputes, the written agreement should outline specific terms, like maintenance responsibility. Generally, the owner of the dominant tenement is responsible for performing property maintenance, however, both parties can share the responsibility meaning clearly articulating specific agreement terms is crucial to managing the easement relationship.
How Do You Determine What Kind of Easement You Have?
Courts determine whether an easement is in gross or appurtenant by reviewing the instrument that created the easement. If the instrument fails to specify the easement’s type, courts consider the parties intentions and the nature of the granted right to use the property. (Moylan, supra, 181 Cal.App.3d at p. 569.) Easements are presumptively appurtenant unless clear evidence exists to rebut this presumption. (Elliot v. McCombs (1941) 17 Cal.2d 23, 29.) Thus, courts favor interpreting easements as appurtenant when the easement is useful and appropriate for the land and can be fairly interpreted as appurtenant. (Eastman v. Piper, supra,68 Cal.App. 561-62.)
What is an Example?
“Shawn” and “Julie” own two neighboring properties in the mountains. Shawn’s property is landlocked, meaning Shawn cannot directly access a public road from his property. Julie’s property has a driveway leading to the public road and is the only piece of land that provides Shawn a route to the public road. This means that Shawn must cross Julie’s property every time he needs to access the public road.
Because Shawn’s property is landlocked and accessing Julie’s property is essential for Shawn to reasonably use and enjoy his property, California law allows Shawn to claim an easement by necessity. This easement allows Shawn to access the minimum amount of land necessary to cross Julie’s property to access the public road. This means Shawn’s property benefits while Julie’s is burdened making Shawn and Julie parties to an easement appurtenant created by necessity.
If Julie objects to Shawn’s use of her property through easement by necessity, the Court can grant the easement over Julie’s objection, if the easement is necessary for Shawn’s use and does not excessively burden Julie’s property. Allowing the court to overcome Julie’s objection ensures Shawn is not left without access to the public road and reasonably protects his right to use and enjoy his property without unfairly burdening Julie’s. Shawn’s easement now exists for as long as his need for access remains, meaning that if a second public road is built that provides Shawn direct access from his property, the easement terminates.
Conclusion
The Underwood Law Firm has a team of experienced lawyers who can help guide you through complicated legal matters like easements and help you pursue solutions like partition to ensure you recover the entirety of what you are legally entitled to. We are here to help.