What are the Different Types of Easements?

Real Estate - Easements Concept

Easements can be very complex — and they can often be the source of contentious legal disputes. In California, there are several types of easements that cover a wide variety of scenarios. If you’re considering purchasing a property with an easement, it is crucial to understand your rights and the legal responsibilities you might have that are associated with it.

What is an Easement?

An easement gives a person the right to use another’s land for a specific purpose, such as egress and ingress. However, it is critical to be aware that easements do not give a possessory right to the holder. They also do not provide the holder with a right to profit from the land or grant permission to someone other than the owner the right to occupy the property.

Easements are much more common than one might think — and there are numerous situations that might require the creation of one. Many easements are established when a subdivision is created to allow utility services to access a portion of the property for things like electricity, water, and gas. A driveway running through someone’s property allowing a neighbor access to their yard, or a public road crossing an owner’s land are also examples of common easements in California.

What are the Types of Easements in California?

There are countless reasons a property owner might want to — or be required to — create an easement on their land. Significantly, some easements are recorded, while others are not. A landowner may not always know about the existence of certain easements on their property at the time they sell it. It is essential to conduct a diligent inquiry and inspect the land to determine whether any easements exist on a property you might consider purchasing.

The types of easements in California include the following:

  • Express Easements — An express easement is one that is created by a writing such as a will or a deed. It can also be created when the owner of a property conveys land to someone else but reserves an easement in it. Express easements can be affirmative and give the holder a limited right to access the land. They can also be negative and prohibit the holder from doing something with the property, like erecting a fence or building a structure that would impede a neighbor’s view.
  • Implied Easement by Existing Use — Sometimes, easements are created through prior use, even if no writing was created. These types of easements must be strictly necessary for the holder to be able to enjoy their land.
  • Easement by Necessity — An easement by necessity may be recognized in situations where it is necessary for a landlocked owner to enter and exit their property. For instance, if there is no way for them to access a public road, an easement will be created that allows them to pass through another’s land in order to do so.
  • Prescriptive Easement — Prescriptive easements are created when an individual uses the property of another in a certain way for an extended period of time, without their permission. Specifically, to establish a prescriptive easement in California, the adverse use of the land must be open, notorious, and uninterrupted for five years or more.

Generally, an easement is permanent and runs with the land — even when it is sold to a subsequent owner. But there are still a few ways an easement can be extinguished. If it is no longer needed by either party, an easement can be terminated in writing. It may also terminate through a merging of the properties, abandonment, or if the need for the easement has ended. Other easements are only created for a limited duration and can expire when the specified time period ends.

Who is Responsible for the Easement?

Under California law, the easement holder is responsible for maintaining it and ensuring it is kept in safe condition. However, the owner may not interfere with the easement holder’s use of it. For easements owned by more than one person — or those attached to parcels of land owned by several parties — the cost of the easement’s maintenance is apportioned among them. Easement owners may also enter into an agreement specifying each of their responsibilities.

If an easement that is owned by multiple parties requires maintenance, any of the owners may make an application to have a neutral arbitrator distribute the cost before, during, or after the performance of the work. If all of the parties do not accept the arbitrator’s decision, the court has the authority to enter a judgment determining monetary liability.

Contact an Experienced California Real Estate Attorney

If you are considering creating an easement or a dispute has arisen in connection with one, it is imperative that you have knowledgeable counsel by your side to protect your legal rights. Our experienced real estate attorneys handle a wide variety of real estate matters, including the creation, evaluation, and interpretation of easements. Call us to schedule a consultation.