Easements in California

The two parcels

Most easements involve two pieces of land. The dominant tenement holds the benefit, the right to do something. The servient tenement carries the burden. The right usually attaches to the land rather than to a person, which is why it survives a sale and why a buyer inherits both the benefit and the burden whether or not they read the title report.

Some easements benefit a person or a company rather than a parcel. A utility easement is the common example. These are held in gross and they behave differently on transfer.

How they come into existence

By express grant or reservation. Someone writes it down and records it. This is the cleanest kind and the wording of the document controls, which is why disputes about express easements are usually disputes about interpretation.

By implication. Where one owner has been using part of a parcel to serve another part, and then divides the parcel, the use can continue as an implied easement if it was apparent and reasonably necessary.

By necessity. Where a division leaves a parcel with no access to a public road, the law will supply a right of access rather than leave the land unusable.

By prescription. Long use that is open, notorious, continuous and hostile for five years can ripen into a right to keep using the land. This gives use, not ownership, and unlike adverse possession it carries no requirement to have paid the taxes.

The words decide the scope

With an express easement, the argument is almost never about whether the right exists. It is about how far it goes. Whether a right of way for access permits a wider road, more traffic, utilities in the ground beneath it, or use by a parcel that was not served when the easement was granted.

Those questions are answered by reading the instrument that created it, in the context of what the parties were doing at the time. Where the wording is broad, the scope is usually broad. Where it names a purpose, the purpose tends to limit it.

What the burdened owner keeps

An easement is not ownership. The owner of the burdened land keeps every right they have not given away, including the right to use the area themselves in ways that do not unreasonably interfere.

The corresponding limit is that they cannot obstruct the easement or relocate it unilaterally. Gates, landscaping and paving are where this argument usually starts, because each of them can be reasonable or obstructive depending on facts.

How each kind is created and how each is proved

An express easement is created by a document, usually recorded. It is proved by producing the instrument, and the argument is about what the words mean rather than whether the right exists.

An implied easement arises when a parcel is divided and a use that was apparent and reasonably necessary continues. It is proved by showing the prior common ownership, the pre-existing use, and that the use was visible and reasonably necessary at the time of division.

An easement by necessity arises where a division leaves a parcel without access to a public road. It requires prior common ownership and strict necessity, and it lasts as long as the necessity does.

A prescriptive easement arises from five years of open, notorious, continuous and hostile use. It is proved with historical evidence, which is why these cases turn on old photographs, prior owners and dated records.

Utility easements and similar rights held by a company rather than a neighboring parcel are easements in gross, and they behave differently on transfer because there is no dominant parcel to carry the benefit.

Scope: the argument that actually happens

Almost no easement dispute is about whether an easement exists. It is about what the easement permits, and that question has a consistent shape.

Whether a right of way granted for access to one parcel can serve additional parcels the owner later acquires. Whether an access easement includes the right to lay utilities beneath it. Whether a right established by occasional use supports daily commercial traffic. Whether the holder can pave, widen, or gate.

Express easements are read according to their terms in the context of what the parties were doing at the time. A grant that names a purpose tends to be limited by that purpose. A broad grant tends to be read broadly. Prescriptive easements are limited by the use that created them, which is a tighter constraint than most holders expect.

What the burdened owner may still do

Ownership of the burdened land continues, subject to the easement. The owner may use the area in any way that does not unreasonably interfere with the easement holder's rights.

Gates are the recurring flashpoint. A gate is not automatically an unreasonable interference, and whether it is depends on the burden it imposes relative to the owner's legitimate interest in security or containing livestock. The same analysis applies to landscaping, parking and surface changes.

What the owner cannot do is block the easement or unilaterally move it somewhere more convenient. Relocation generally requires the holder's agreement.

How an easement ends

By written release from the holder, recorded. By merger, where the same person comes to own both parcels. By expiry, where the instrument set a term. By the end of the necessity, for an easement by necessity. By abandonment, which requires conduct showing an intention to give the right up rather than simply not using it for a while. And by prescription against the holder, where the burdened owner blocks the use openly and continuously for five years.

Non-use alone does not end an easement, which surprises buyers who purchase a property with an unused right of way across it and assume it has lapsed.

This article is general information about California law and is not legal advice for any specific situation. If you are dealing with this issue, the facts of your matter will change the analysis.