Real Estate – Easements

Easements – A Lesson in Sharing

By Randy Ortlieb

What does sharing have to do with easements?  Sometimes, our selfish nature gets the better of us and we fight over things that should be shared. Easement disputes can often be solved by a better understanding of how conflicting uses should be shared. Courts will often require sharing even when the parties don’t want it. Contact our experienced Real Estate Attorneys at Palomar Law Group for assistance with an easement dispute. Call (760) 747-2202 to schedule a complimentary consultation.

What Are Easements?

An easement is a sharing of land between a land owner and a land user. Common easement uses are water supply pipes, telephone poles, driveways and roads, and views. The user of an easement is sometimes called the dominant tenant. The owner of the land on which the shared use is located is called the servient tenant. When one or both parties refuse to share, then the law operates to enforce the sharing.

Most easements are permanent and run with the land of the dominant tenant – the technical term for a permanent easement is appurtenant easement. An easement is different from a license. When the use of land can be terminated at will by the servient tenant, it is a license rather than an easement. A license is a revocable nonpossessory right to us land for a limited purpose, like parking in a parking lot.

How Are Easements Created?

There are several ways an easement is created: 1) by express grant or reservation; 2) implied grant or reservation; 3) adverse use (prescription); 4) necessity; 5) equitable easements; and 6) private condemnation.

Express Easements. An express grant of an easement is created when the owner of the property conveys the easement to someone else. An express reservation is when the actual owner conveys actual ownership interest in his whole, or part of, his property but retains the right to an easement on the conveyed property. An express easement can be created by any instrument that transfers an interest or estate in property. Examples are deeds, wills, agreements, or recorded covenants. This is the most desirable and simplest way to create an easement, as it is defined in writing and clearly shows which property has a legal right to the easement.

Implied Easements. An easement can be created by implication under various circumstances, usually determined when the trier of facts, such as a jury, concludes that the parties intended to create an easement, even if they failed to expressly establish it. Implied easements usually arise when the original owner subdivides his land and leases or sell a portion of it and when a use of the land existed before the conveyance. Denying an easement in these circumstances would deny the new owner or tenant full enjoyment of the premises. An implied easement can only be created under circumstances that an express easement could have been created.

Prescriptive Easements. An easement can be created by prescription, which is analogous to adverse possession. Most of the elements needed in adverse possession are applicable to prescriptive easements. As long as the elements are met, a dominant tenant would have an easement on the servient tenement, without an express or implied easement. The person claiming prescriptive easement must establish use of the property, which is uninterrupted for 5 years and done without permission of the servient tenant. The requirements are similar to those needed for adverse possession, with one key difference: prescriptive easement does not require the dominant tenant to pay taxes in order to claim the easement.

Easements by Necessity. An easement can be created by necessity. Easements by necessity are somewhat rare. However, in certain situations, courts may recognize an easement because the law favors the use of land and an easement is needed to use the land. A common situation is when a subdivision of property creates a landlocked parcel of land. Prior creation of the easement before the transfer of title, which is required for implied easements, is not needed. An easement by necessity only lasts as long as the necessity exists. If a parcel of land can be reached by another way, regardless of inconvenience, necessity will usually not be found.

Equitable Easements. In cases where the usual easement elements are not present, such as encroachment cases, courts can exercise their equity powers to grant protective interests in land belonging to another, an interest commonly known as an equitable easement. To create an equitable easement, three factors must be present: 1) the easement seeker must use and improve the property innocently, as in the encroachment must not be willful or negligent and a court should weigh the parties’ conduct to determine their responsibilities for the dispute; 2) the actual owner will not suffer irreparable harm by the creation of the easement; and 3) the hardship of denying the easement must be greatly disproportionate to the hardship of allowing it.

Private Condemnation. An owner may acquire an easement through private condemnation (similar to eminent domain) in order to provide utility services to his or her property, including water, gas, electric, drainage, sewer, and telephone service. In order to acquire an easement through private condemnation, the dominant tenant must show a public necessity and is required to establish the following: 1) there is a great necessity for the taking; 2) the location of the easement affords the most reasonable service to the dominant tenement, consistent with the least damage to the servient tenement; and 3) the hardship to the dominant tenant, if the taking is not permitted, clearly outweighs any hardship to the servient tenant. A similar temporary taking is authorized for repair of land or improvement.

Sharing Put to the Test – Disputes.

Sharing comes in handy in untangling easement disputes.

Access Easements. A common question is whether the servient owner can place a gate across a driveway, ostensibly for security reasons but often only after a dispute arises. It all comes down to how the trier of fact defines a proper sharing of the benefits and burdens of the easement. A simple question to ask is whether the obstruction is an unreasonable interference with the use. So, is a chained gate unreasonable? Quite probably. Is a motorized gate with a keypad unreasonable? Maybe not. How about speed bumps? Possibly, but not necessarily. My take is that if your client is being a good citizen and sharing, there’s a good chance they can prevail in their dispute.

View Easements. A view easement prevents an adjoining servient tenant from obstructing the view of the dominant tenant. Is an owner unreasonably interfering with a view that is protected by an easement? How can the owner and neighbor equitably share the limited space available and still satisfy their needs? It is helpful to note that public policy favors property development, so view easements are strictly construed by the courts. View easements can only be created expressly; in California, implied and prescriptive view easements are not recognized.

Terminating an Easement. 

A party only has a limited number of options to terminate an easement. The simplest way to terminate an easement is through the language in the grant. An easement may be created temporarily or conditionally. If the time limit or condition is no longer applicable as described by the grant, the easement is automatically terminated.

Merger can also terminate an easement. If a servient tenant acquires the dominant tenement, the easement can be automatically terminated. Likewise, if a dominant tenant acquires the servient tenement, the easement can be automatically terminated, since the dominant tenant now also has the actual title to the property.

Parties can also agree to terminate an easement by the holder of the easement giving a release deed to the servient tenant. The deed transfers the easement and the easement then merges into the servient tenement. Just as the creating of an express easement requires formalities, the release deed also requires the same formalities. Just a verbal notice to terminate an easement or nonuse of the easement does not automatically terminate the easement. However, courts may find that an easement is terminated by a verbal notice followed by nonuse of the easement, which has to be long enough to prove the intent to terminate the easement. A similar concept is abandonment, which can result in termination of an easement.

An easement can also be terminated by adverse use by the servient tenant or other third parties. If a servient tenant or another party obstructs the easement and the dominant tenant does not assert a cause of action, the easement is then lost. The rules of prescriptive easement apply in these cases. A similar situation is called abandonment, when nonuse together with other conduct is found to result in a loss of the easement rights.

Randy Ortlieb is the founder of the Palomar Law Group, whose practice emphasizes service to families and small businesses. For questions relating to this article or for assistance with a real property matter, please contact Mr. Ortlieb at Palomar Law Group.