EASEMENTS

EASEMENTS

Generally

Having considered various types of liens which are encumbrances affecting the title to property, it is important
to consider encumbrances which affect the physical condition or use of the property. Easements, probably the
most common of this category, are ordinarily rights to enter and use another person’s land or a portion thereof
within definable limits. Therefore, an easement is a right, privilege, or interest limited to a specific purpose
which one party has in the land/property of another.

Easement rights are often created for the benefit of the owner of adjoining land. The benefitted land is called
the “dominant tenement,” and the land subject to the easement is described as the “servient tenement.” Unless
the easement is specifically described to be “exclusive,” its creation does not prevent the owner of the land
from using the land/property and the portion covered by the easement in a way that does not interfere with the
use of the easement.

Appurtenant Easements

Typical statutory easements (or land burdens or servitudes as they are also known) include, among others: a
right of ingress and egress (a right to go on the land and to exit from the land); the right to use a wall as a party
wall; or the right to receive more than natural support from adjacent land/property or things affixed thereto.

These easements, when attached to a ‘‘dominant tenement,” are considered “appurtenant” thereto, and pass
automatically upon transfer of the dominant tenement without explicit mention in the instrument of transfer.
“Appurtenant” means “belonging to.” Civil Code Section 801 lists a variety of easements commonly used in
real property transactions. Civil Code Section 801.5 provides for a solar easement to ensure that solar collectors
receive direct and unimpaired sunlight to facilitate the operation of the solar energy system.

Easements in Gross

It is possible to have an easement that is not appurtenant to particular land/property. Thus A, who owns no
related land/property, may have a right-of-way over B’s land/property. Public utilities frequently enjoy
easements to erect poles and string wires over private lands, yet own no related dominant tenement. Such
easements are technically known as easements in gross, and are personal rights attached to the person of the
easement holder and not attached to any specific land/property, yet in reality they encumber someone’s
land/property and in effect constitute an interest therein.

If the instrument creating an easement is unclear, the following factors are useful in determining whether the
easement is appurtenant or in gross: (1) if the easement can fairly be construed as being attached to the
land/property, it will be so construed; (2) the intention of the parties and the right created are important
considerations; and (3) outside evidence may be considered.

How Easements Are Created

Easements may be created in various ways, such as by express grant, express reservation, implied grant or
implied reservation, agreement, prescription, necessity, dedication, condemnation, sale of land/property with
reference to a plat, or estoppel.

Normally, easements arise in one of three ways. Either they are expressly set forth in some writing (such as a
deed or a contract), or they arise by implication of law, or by virtue of long use. Those created by deed must
comply with the usual requirements of any deed and may arise either by express grant to another or by express
reservation to oneself.

While the most common method of creating an easement is by express grant or reservation in a grant deed,
written agreements/contracts between adjoining landowners/property owners often are used. Generally, a deed
or other recorded instrument to impart constructive notice of the easement established by the
agreement/contract. The person who can grant a permanent easement is the fee owner of the servient tenement,
or a person with the power to dispose of the fee.

Easements created by agreement/contract with a deed or other instrument of record to impart constructive
notice must not violate applicable law, public policy implementing the law, or public policy even though not
expressly applicable law. In a recent case, the agreement/contract between the dominant tenement and the
servient tenement established an easement for maintaining horses on the land/property of the servient tenement.
The applicable zoning ordinance prohibited the maintenance of horses on the land/property affected by the
easement. Because of the violation of the zoning ordinance, the court held the easement unenforceable and the
agreement/contract void. See Civil Code Section 1667 and Baccouche v. Blankenship (2007), Cal.App.4th [No.
B192291. Second Dist., Div. Four. Sep. 11, 2007.]

Easement by Implication of Law

Civil Code Section 1104 contains the rule for implied grants. Certain conditions must exist at the time
land/property is conveyed before an easement by implied grant will have effect. An easement by necessity is
one example of an easement by implication, but an easement by necessity differs somewhat in its requirements
from other easements by implication.

The “way of necessity” is generally recognized whenever a transfer occurs which truly “landlocks” a parcel of
real estate (land/property) and no method of access exists, except over the servient tenement retained by the
seller, or over the land/property of a stranger. The former is established by implication. The later would
generally require a quit claim deed from the seller describing the road used by the seller and the seller’s
predecessors in title to the parcel of land/property conveyed that otherwise is “landlocked”. To implement the
claim to the access may require establishing the easement by perscription.

Another implied easement is recognized when land/property in one ownership is divided, and at the time of
division, one portion is being used for the benefit of the other portion, e.g., a sewer lateral. See Civil Code
Section 801 and 1104.

Easement by Prescription

Continuous and uninterrupted use for five years will create an easement by prescription where such use is
hostile and adverse (without license or permission from the owner), open and notorious (the owner knows of
the use or may be presumed to have notice of the use), exclusive (although use is not necessarily by one person
only, it is such as to indicate to the landowner/property owner that a private right is being asserted), and under
some claim of right. Generally, payment of ad valorem or other relevant real property taxes is not required to
establish an easement by prescription, although it is among the requirements to establish adverse possession and
ownership of the land/property. The obtaining of a quitclaim deed as discussed in the previous section may join
the concept of easement by implication with easement by prescription. Should the stranger have been in chain
of title to the subject land/property, an easement by implication with a quitclaim deed may be established. See
Civil Code Section 813 and 1008.

Termination of Easements

Easements may be extinguished or terminated in several ways, including express release, legal proceedings,
nonuse of a prescriptive easement for five years, abandonment, merger of the servient tenement and the
easement in the same person, destruction of the servient tenement, and adverse possession by the owner of the
servient tenement. An easement obtained by grant cannot be lost by nonuse. See Civil Code Section 811.