In California, an easement is defined as a right granted to an entity to use a piece of property belonging to a separate individual or entity for a specific purpose. The most common types of easements in real estate are those that grant road or utility access. Easements are designed to continue indefinitely, but they can be ended in certain circumstances. Especially when written into the deed, an easement, under Transfer of Property Act, continues when the property changes hands.
Different Types of Easements in California Real Estate
There are four kinds of easements in law in California. The express easement is the most common. The other three are prescriptive easement, implied easement by existing use, and easement by necessity. Public easements in California fall under express easements and are undoubtedly written into the deed for the property long before you took ownership.
California easement law outlines rules governing easements by easement type. The type of easement on your property dictates if and how that easement can be terminated, what it can be used for, and how it is established.
Express Easement
An express easement in California real estate is an easement for right of way purposes expressly granted by the property owner. These easements are typically written into the deed of the property, transferring with each successive owner. The easement must identify a specific purpose for which the easement rights will be invoked.
Public access roads and utility easements are the most common types of express easements in which rights are granted to an entity such as a utility company or municipality and their employees. What is a utility easement in California? It is a portion of your property that you cannot build on, plant on, otherwise cover or obstruct so that underground or overhead utilities can be accessed for maintenance and repair.
Here are other examples of express easements:
- You sell a piece of your property not connected to a public road, but with access to your private road. The right to use that private road may be written into the deed for the plot.
- Sidewalks or walking paths in front of your property are likely express easements. You still own the property, which is why you are responsible for maintenance. The public can use those walkways without impediment.
- Some express easements prevent the owner from doing something with the land rather than giving rights for someone else to use it. An express easement might be written into the deed so that successive owners cannot block a neighbor’s view with shrubbery, fencing, or other structures. These are called easements for “light and air.”
The key to remember here is that in an express easement, the right to use the portion of property for the specific purpose is granted by either oral or written agreement, or addition of the easement to the deed.
Prescriptive Easement
A prescriptive easement occurs when a piece of private property has been used frequently, for an extended period of time (at least 5 years), and for a specific purpose without express permission. To establish a prescriptive easement, the land and its specific use must be open, notorious, and uninterrupted for five years or more.
This type of easement may or may not be written into the deed but will likely be upheld if the property changes owners. A great property easement example of this is pedestrians cutting across parking lots or other private property. Consider this scenario:
Teens cross your parking lot every school day to cut out part of their walk. This trend continues for five years. You sell the parking lot, and the new owner wants to stop them from crossing the parking lot. The parking lot could be declared a prescriptive easement, permitting the use to continue regardless of the new owner’s wishes.
Implied Easement by Existing Use
An implied easement by existing use is an easement that grants rights based on the previous use of that land for a specific purpose. For an implied easement to be granted, the individual or entity must be able to prove that they were previously permitted to use the land for that specific purpose. These easements are most common when property changes hands.
Here is an example of an implied easement by existing use:
A farm has a barn accessible only by a private road on the neighboring property. The farmer uses this road to access the barn indefinitely, but there is no easement written into the deed of the neighbor. When the neighbor’s farm is sold, the farmer can enforce their right to use the private road by proving that they had always been allowed to do so.
Easement by Necessity
Easement by necessity occurs when an individual or entity need access or use of a portion of a property, but the property owner does not grant permission for that use. The aggrieved individual can petition the court for an easement by necessity in some situations.
Let’s return to the easement example of the farmer selling only a portion of their land, with the new owner of the plot needing access to the public road. If this access were not granted as part of the deed or otherwise as an express easement, the new owner of the lot can petition the court to grant easement by necessity so that they can use the private road without impediment, even if the property owner doesn’t wish it.
Stone & Sallus are expert real estate easement attorneys who are able to answer any legal questions on California real estate easement law.
