Understanding Easements in Real Estate: How Easements are Created

Easements can be created by agreement of the parties or they can be created by action of law based upon use over a period of time

In the example in this image, Bob needed an easement across Tim’s Property so that he would not be landlocked. These commonly are created through a written agreement between the parties or their predecessors. Bob’s Property likely was previously owned by the person who also owned Tim’s Property and the granting of the Driveway Easement would have been a requirement for the previous owner to get City or County permission to split his Parcel into two pieces.

Easements Created by Agreement
California law requires that any agreement concerning rights to real property by in writing and be executed by the owner of the real property. These typically arise as follows:

(1)    Easement Deed – this is a written, notarized, and recorded document, signed by the real property owner which legally defines the easement area and the purpose for which the easement has been granted. It typically would identify both the Dominant and Servient Tenants.

 (2)    Grant Deed –  Sometimes, the easement is created through the language of a Grant Deed on the sale of real property where the Seller (Grantor) reserves to himself an easement as to a portion of the land being sold.  Often this is to provide for driveway access such as when the Seller has subdivided their land.

 (3)    License – A License is very similar to an easement in that it grants the holder to come onto the land of another for some designated purpose. However, a License is generally personal to the license holder and does not run with the land and, as a result, no access rights are conveyed to any successor of the license holder. I’ll cover this more in Part 4.

 (4)    Right of Way –  A “right of way” consists of a right of passage over and upon a piece or parcel of land. It may constitute either an easement or a license.

Easements Created by Law
Other times, easements are created over time by the continued use of the land by a non-owner, often without any objection by the owner.  Here there is no writing establishing any agreement but the use of the land must be open and visible and generally used continuously for at least five years.  Needless to say, since these easements arise without the written consent of the property owner, they often give rise to heated litigation battles. These are:

(1)    Implied Easement –   Sometimes the law implies an easement by inferring that the parties to a transaction intended an easement to be created even though they did not expressly create one. An easement will be implied if the following conditions exist at the time of the conveyance:
1.    the property owner conveys a portion of the property to another;
2.    the owner’s prior existing use was of such a nature that the parties must have intended or believed the use would continue (i.e., the existing use was either known to the grantor and grantee or “so obviously and apparently permanent that the parties should have known of the use”); and
3.    the easement is reasonably necessary to the use and benefit of the dominant tenement.

 (2)      Easement by Necessity
An ‘easement by necessity’ (essentially a species of implied easement, above) is created when:
1.    there is a strict necessity for the ‘right of way’ provided by the easement–i.e., the dominant tenement is completely landlocked; and
2.    the dominant and servient tenements were owned by the same party at the time of the conveyance giving rise to the ‘necessity.’ It is immaterial whether the common owner of the conveyed parcels was a private party or governmental entity. Being appurtenant to the dominant estate (the landlocked parcel), an easement by necessity passes with each transfer of title to that property, and may be exercised at any time by the then-holder of the title for so long as the necessity exists and whether or not it was exercised by prior grantees in the chain of title. On the other hand, an easement by necessity, once created, does not survive into perpetuity. It ceases to exist when its necessity no longer exists–i.e., when the dominant estate is no longer landlocked because the owner has acquired a new means of access to the property.

(3)    Prescriptive Easement: Unlike Easements by Intent or Necessity, Prescriptive Easements do not require any mutual intent of the parties or any specific need. A party claiming a ‘prescriptive easement’ must only prove the following:
1.  that they have been using the land of another; and
2.  that this use was open and notorious, ie:  the use must be such that the property owner would be aware of it if they were exercising any kind of reasonable diligence as to who is going onto their property.
3.  that the use was hostile to the rights of the property owner, ie: the use was without the property owner’s consent and interfered with the owner’s title and use to that portion of the property; and
4.  that the use was continuous and uninterrupted for five years.
As is to be expected, legal battles over Prescriptive Easements tend to be the most contentious.

Note about “Adverse Possession” – many people confuse Prescriptive Easement rights with Adverse Possession because they both arise from similar facts. The distinction is that through Adverse Possession, the non-owner can actually obtain legal ownership of the portion of the property. However to do so if they must not only meet all of the requirements for prescriptive easement, but also they must have paid the property taxes throughout that period. This tax payment requirement makes Adverse Possession much more difficult to achieve.

NEXT:  In Part 3, I’ll cover Enforcement of Easements Rights and Defenses

For over 20 years, the attorneys of BPE Law Group, P.C. have been advising and representing property owners and real estate professionals in dealing with their legal concerns including easements and other land-use issues. Our major  areas of practice include: Real Estate, Business, and Estate Planning. We do business primarily in California although our clients are world-wide.  Check us out on the Web at: www.bpelaw.com.  If you would like a consultation with us, please call our office at (916) 966-2260 or e-mail me at sjbeede@bpelaw.com.

This article is not intended to be legal advice, and should not be taken as legal advice.  Every case requires review of specific facts and history, and a formal agreement for service.  Please feel free to contact us if you need legal advice and are interested in seeing if we can help you.