The DirtLaw Blog

Easements: What are they and how are they created?

A little primer on easement law in California, brought to you by Simon O. Offord and I.

Definition: an easement is a non-possessory interest for the use of real property belonging to another for some specific stated purpose. 

            Law students are all taught that real estate is essentially a “bundle” of rights.  If you imagine that outright ownership is the entire bundle, an easement is something less than ownership and perhaps greater than a tenancy (lease).

Historically, easements were only allowed for right-of-way, support, light and air, and rights pertaining to artificial waterways.  Today, however, courts recognize easements for a much broader range of uses, including but not limited to utility lines and scenic views.  

            Before purchasing real estate, you should have a basic understanding about easements that affect, or may in the future, affect the property. 

California recognizes several different types of easements. 

Express Easement

            An express easement is created by specifically granting or reserving an easement to another by way of a deed or other legal instrument.  The express easement must be in writing, and it is advised you seek the assistance of a knowledgeable real estate attorney in order to ensure the easement is properly created and contains key terms such as how costs of road maintenance are shared and property tax contributions.  Additionally, easement disputes require civil engineers or surveyors to provide the exact property description for the easement area. 

A homeowner will typically see it in the language of the Grant Deed itself or referenced in the preliminary title insurance report.  A common example is a shared driveway where Property A owns the land but neighboring Property B has the express right to drive over Property A to get access to Property B.  Because Property B has the right-of-way over Property A, Property B is the “dominant tenement” and Property A is the “servient tenement.”

            An express easement is also the only easement that does not require litigation to create.  All the other forms of easements are creatures of law rather than of contract and generally require a Court order or litigation to achieve an express easement through settlement.

 

Easement by Implication

            In order to have an easement by implication, the owner of property must (1) convey or transfer a portion of property to another, (2) the owner’s prior existing use must have been of the nature that the parties must have intended or believed that the use would continue, and (3) the easement is reasonably necessary for the use and benefit of the land. 

 

Easement by Necessity

            An easement by necessity is exactly what it sounds like – it is an easement necessary for the owner to gain access to his or property because the parcel is “landlocked.”

            How does such a situation arise? An easement by necessity is created when the servient and dominant tenements were in common ownership at some point in time, and as a result of a conveyance by the common owner, one parcel became completely landlocked. 

            This situation is more common in rural areas or where there were originally large land grants to owners a few generations ago.  As each new owner inherits and subdivides and sells off a parcel, access to the remaining parcel is often overlooked.

            What this means is that there was originally one owner of the property in question, who thereafter divided the property, leaving one portion of the property (the dominant tenement) without access to the land, other than through the second portion (the servient tenement). 

Courts will therefore allow for an easement across the servient land for as long as the easement is strictly necessary to gain access to the landlocked property (note the distinction from an easement by implication, where there the use need only be reasonably necessary, whereas an easement by necessity requires strict necessity).       

 

Easement by Prescription

            An Easement by Prescription is one where someone who is not the owner of record, may use the land based on the time and nature of their use.  In other words, a squatter of sorts.

In order to have an easement by prescription, it must be shown that (1) the land was used continually for a period of five years, (2) possessed in a manner that was open, notorious and clearly visible to the owner of the burdened land, (3) hostile and adverse to the true owner, and (4) under a claim of right.

The law in California has really evolved on prescriptive easements, involving fact patterns where owners had installed elaborate landscaping, koi ponds and the like only to learn that they had improved their neighbor’s property. 

            California also has “good faith” improver statutes to compensate the mistaken improver.

Equitable Easement

            When the user cannot assert any of the above grounds for an easement, the court may exercise its equitable jurisdiction to issue a permanent injunction against interference with future use when (1) a party has used and improved an easement for a long period of time with an innocent belief that they have the right to use the land, (2) there would be irreparable harm if they could not continue to use the easement, and (3) the servient tenement would suffer little harm from the continued use.  

 

Assessing Your Rights

            Analyzing whether you may have right to an easement over your neighbor’s land, or your property may be burdened by any of the above types of easements is a very fact specific determination.  Do you have signs, have you paid taxes, who were the common owners, etc.  Additionally, the legal landscape has shifted frequently with regard to prescriptive easements so having a real estate attorney assist you in making this determination is recommended.  The above descriptions provide the basic considerations for the creation of easements, and whether or not an easement does in fact exist may hinge on additional factors specific to your particular situation.

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About the author:

Simon graduated from the University of California at Santa Barbara in 2005. Thereafter, he remained in Santa Barbarato work at a general litigation firm before attending law school at Santa Clara Universityand earning his Juris Doctorate in 2009.

As a student at Santa Clara University, Simon was named top of his class (receiving the CALI

or the Witkin Award) in four of his courses, in addition to graduating on the Dean’s List.  While attending law school, Simon clerked for a law practice that primarily focused on real estate litigation and transactions before becoming a clerk with the firm in 2009.  Simon’s experience includes law and motion practice and all stages of a civil trial. 

At the Law Offices of Peter N. Brewer, Simon works on matters representing real estate brokers, agents, and their clients as well as secured creditors in bankruptcy matters. 

The Partial Reconveyance

Often in a construction context, the Deed of Partial Reconveyance is required.  The most common scenario is when an owner wants to subdivide their parcel and the parcel is encumbered by a Deed of Trust.

The second most common scenario is when a neighbor wants to buy some additional portion of the adjacent property, usually to comply with setback requirements of their remodel or to preserve their view.

In both circumstances, the Lender made a loan against the entire property.  For ease of reference, assume Lender's Deed of Trust encumbers all of Property A, which totals 1 acre.

California is a Trust Deed state, which means there are 3 parties involved in the loan-- the lender is the Beneficiary, the borrower is the Trustor and the lender designates a Trustee (usually a title company).  The beneficiary has the power to tell the Trustee to reconvey title to the property back to the Trustor (borrower) if the loan is paid off.

However, when Owner A wants to sell 1/2 an acre to Owner B, the lender has to approve it and agree to instruct the Trustee to issue the Partial Reconveyance of the original Trust Deed.

The Lender will want an appraisal because it wants to make sure that if Owner A is shrinking the land (security or collateral for the loan) that the Trust Deed encumbers, that the borrower (Trustor) still meets the Lender's underwriting guidelines for the loan.   

The appraisal report will need to show the value before and after the proposed sale of the land to the neighbor.  If Owner A has owned the acre for a while, she or he may have experienced an increase in value and accordingly, even with the loss of the square footage, the value of the 1/2 acre may still be enough to meet the loan-to-value ratio the Lender requires.

After the Lender reassures themselves (with appraisal reports) that they are still adequately secured, they will instruct the Trustee to execute the partial release.  The Trustee is sometimes a title company and so they can usually prepare the Partial reconveyance in house.

In additional to the hurdles with the bank, the City or County will need to be involved for a lot line adjustment.

While the lender’s decision is not related to city or county approval, the city approval gives the appraiser a firm idea of what the boundaries are, square footage etc. on which to base his or her appraisal. 

Additionally, a civil engineer or surveyor will need to be involved in order to confirm those findings and describe the newly changed property boundaries.

In sum, it is not a particularly easy process to navigate as it requires the coordination of so many parties.  However, working with seasoned professionals will speed up this process.

Landlord Not Liable for Tenant's Dangerous Dog

There are a surprising number of cases involving dogs, though most cases are not as famous as the vicious attack that killed Diane Whipple in 2001.  Ms. Whipple's neighbors housed Canary Island mastiffs.  Both criminal and civil cases were highly televised.

In Alameda county, in the case of Chee v. Amanda Goldt Property Management, a Jack Russel Terrier attacked a 71 year old woman and only the legal journals picked it up.  In that case, the victim Ms. Chee sued her neighbor Kiymaz who owned the terrier.  Unfortunately, the neighbor filed for bankruptcy.  Left without a defendant, Ms. Chee's attorney brought an action against the landlord and the property management company under the theory of vicarious liability.

The Court found that the landlord and the property management company were not liable because they did not have actual knowledge of the that particular dog's dangerous characteristics.  Knowledge of the existence of the dog and the breed characteristics were not enough.

Additionally, the Court was careful to distinguish that this was taking place in a residential setting where pets are common.  The one case where a landlord has been found jointly and severally liable with the tenant was in a commercial property setting where the tenant kept a guard dog.  In that case (Portillo v. Aissa), the landlord had recently renewed a lease with the tenant and should have inspected the premises at the time of the lease renewal. 

The Chee Court reiterated that the general rule is that a residential landlord has no duty to check on the tenant and inspect for dangerous pets.  However, it would not be advisable to deliberately avoid managing your rental properties as there are other conditions to the property that a landlord would be responsible to inspect for and address.

Do you have a dog?  Talk to your insurance agent to see if your policy covers it. 

Good Fences Make Good Neighbors

Who has to pay?

Most of us share at least one fence with a neighbor.  In my case, I have a fence shared with 3 different neighbors.  Over time, the fences had weathered El Nino, and La Nina and pretty much gave way.  We shared the replacement cost with each neighbor equally.  Sounds like common sense, right?  Well actually, it's required by statute.

California Civil Code Section 841 states, "Coterminous owners are mutually bound equally to maintain...boundaries and monuments between them...[and] fences between them..."

That means that if your fence blows down in the next rain storm and your neighbor won't share the cost of replacement, you can remind them of their legal obligations.  However, there is one exception to the rule. 

Suppose the character of the neighborhood is such that your neighbor decides that he does not care whether the fence is ever replaced.  Then your neighbor is excused from paying for the fence.  This is a rare scenario, but in suburbs and metropolitan areas, people generally don't worry too much about wandering sheep, horses and other grazing animals.  However, those of us with dogs and/or children would normally prefer to fence off our yard.

Spite Fences

Most cities have regulations about the height of fencing, normally 6 feet tall is the maximum.  The state law (California Civil Code Section 841.4) is that anything exceeding 10 feet in height is a nuisance.

However, that code section actually requires intent, that the fence was erected either maliciously or maintained for the purpose annoying the neighbor.

Case law has gone on to find that even trees planted in such a manner can be considered a spite fence. 

The remedies for injured neighbor can be an injunction, reduction of the height or removal of the fence.