RE: EASEMENT TERMINOLOGY

RE:  Easement Terminology

I am receiving more calls this year regarding easements than at any time in the past.  This article is intended to be instructive as to the types of easements that you are likely to see in California.

Easements Generally.

Easements take on a variety of forms.  There are utility easements for gas, electric and telephone.  Other easements are between neighbors to protect views or allow access for ingress or egress.

An easement is a right to use land that belongs to someone else.  Easements are referred to as either Affirmative or Negative.  An Affirmative easement allows a particular use on property while a Negative easement prevents a particular use on property.

For example, a Negative easement can be used to prevent a homeowner from building on his property in a way that interferes with the view of neighbors (i.e. a view restriction).  An Affirmative easement, for example, can be used to allow one to use a portion of his neighbor’s lot as a driveway to access his lot (i.e. an ingress/egress easement).

Easements are also classified as being either Appurtenant or In Gross.  An Appurtenant easement transfers with title and benefits the property.  An In Gross easement does not transfer with the title and benefits an individual, not the property.

An example of an Appurtenant easement would be a right of way easement over another’s land.   An example of an In Gross easement would be the right of an individual to take water, timber or minerals from another’s land.

Most easements in residential settings are Appurtenant-Affirmative easements.

Creation of Easements.

Easements are created by grant, reservation or court order.  An easement created by grant is created by a recorded Deed and shows up on the title report.  An easement created by reservation is also created by a recorded Deed but arises when an owner of two adjacent properties transfers one and reserves an easement in the Deed.

Easements by Prescription and Necessity are generally created by court order.  A person seeking to enforce an Easement by Prescription or Necessity will file a lawsuit and request that the court issue an order confirming the easement.   The order can then be recorded in the county recorder’s office and the easement will then reflect on the title report.

The differences between easements by Prescription and Necessity are explained below.

Easement by Prescription (Prescriptive Easement).

A prescriptive Easement is implied by law based upon prior use.  A prescriptive easement is similar to adverse possession and arises from unauthorized use of another’s property for five (5) years.

A prescriptive easement requires:  (1) continuous use for a period of five (5) years; and (2) possession in a manner that was open, notorious, and clearly visible to the owner of the burdened land.

A prescriptive easement generally arises when one property owner uses a portion of a neighbor’s property to access a garage, backyard or side yard.  For example, I have a client who has been using 3’ of his neighbor’s land as a driveway to access his garage in the back of the house.  After five (5) years, my client acquired prescriptive easement rights and the neighbor cannot prevent him from using the land in the same manner in the future.

Even if you haven’t used the disputed land for five (5) years, you may still qualify if a prior owner also used the disputed land.  The concept is known as “tacking”.  You can tack onto the use of prior owners to reach five (5) years of continuous use.

A prescriptive easement is defeated with consent.  Oftentimes, you will see a stamp on a driveway which states “use of this driveway is with consent of the owner”.  The Claremont Colleges have this posted all over campus to defeat any claims of prescriptive easement.

Unlike adverse possession, you can establish a prescriptive easement without paying any property taxes for the disputed property.

Prescriptive easements are commonly argued in residential boundary disputes.

Easement by Necessity.

An easement by necessity is implied by law when it is “absolutely necessary” to access a landlocked parcel.

Easements by necessity require that:  (1) both parcels (front and back parcels) were originally owned by the same person; and (2) one parcel became completely landlocked as a result of conveyance by the common owner (i.e. the owner sold the back parcel).

Easements by necessity often arise when an owner of two adjacent parcels sells the back parcel which is landlocked.  Since the only access is over the front parcel, the court will imply an easement by necessity in favor of the back parcel for ingress and egress.

An easement by necessity only exists when strictly necessary for access.  Once there is another access, such as a new road by the back parcel, then the easement automatically terminates.

In practice, an easement by necessity is limited and only applies to landlocked parcels.

Summary.

In summary, easements are created by:  (1) grant in a Deed; (2) reservation in a Deed; (3) prescription (i.e. continuous use for five (5) years); and (4) necessity (i.e. landlocked parcel).

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