Understanding Shared Land Rights Easements and Licenses Series Finale
By Roberto M. Hernandez and Skyler E. Gray
October 10, 2023
In part one of this series, we introduced the concept of shared land rights and provided some introductory information on easements and some common terminology to be aware of. In part two of this series, we discussed three of the most common easements found today: express easements, implied easements – by necessity, and implied easements – prior existing use.
With that in mind, we are now prepared to quickly dive into two more common easements found today: (i) easements by prescription and (ii) Easements by Estoppel. We will quickly discuss licenses in this article as well.
Prescriptive Easements
A prescriptive easement is entirely different from the previous easements discussed in this series—prescriptive easements are acquired only through the unauthorized use of another’s land. In California, a prescriptive easement may be found where the use of another’s land is (i) open and notorious, (ii) continuous and uninterrupted, (iii) hostile, and (iv) continues for five years. Let’s illustrate with another hypo.
Once again, John owns Greenacre, and Jane owns Blackacre, a neighboring parcel to the east. Because Jane is a daredevil, Jane goes off-roading on a particularly muddy strip of Greenacre on his daily commute to and from work. John knows about Jane’s everyday use as the particularly muddy strip of land because the strip of land is right next to John’s residence. Despite never confronting Jane, John put up “no trespassing” signs to deter his neighbor’s unruly behavior. However, Jane continued to travel through the strip of land daily for over five years. Based on these facts, Jane and the future owners of Blackacre (if Janes takes court action to secure her rights to the muddy strip of land) likely have a prescriptive easement for ingress and egress through the particularly muddy strip of land on Greenacre.
What could John have done to prevent Jane’s use from ripening into a prescriptive easement? John could have gotten Jane to stop on his own accord or by bringing legal action to establish John’s right to terminate Jane’s use of the muddy strip of land. Alternatively, instead of “no trespassing” signs, John could have put up signs that stated something similar to “right to pass by permission, and subject to control, of owner: section 1008 civil code” at both entrances of the muddy strip and less than every 200 feet along the strip. In any event, speaking with a legal professional would also benefit John in preventing the formation of an easement.
With our quick dive into prescriptive easements complete, we will now take a look at equitable easements and licenses.
Licenses and Equitable Easement
A license is very similar to an express easement in that it is permission to use another’s property for a specific purpose, except it is informal and oral instead of written (although a license can be in writing). Importantly, licenses are revocable at any time, not exclusive to the holder, and generally do not transfer long-term interest in the property. However, property owners must be cautious when granting licenses without legal assistance because a license can develop into an irrevocable equitable easement.
A license develops into an equitable easement, becoming irrevocable, when the oral representation (i) is one that the licensee reasonably relied on, and (ii) as a result of their reliance, substantially changed position, (iii) making the creation of a license the only way to avoid injustice. The goal of an equitable easement is a balance between fairness and property rights. Like express easements, equitable easements bind future owners of the involved properties.
Let’s take an example. Imagine Jane, who owns Blackacre, talks to John, the owner of Greenacre. They discuss how much Jane is going to spend on paving a steep windy road on Blackacre for Jane to access West Road, the nearest public street. John suggests that Jane can use a muddy strip of land on Greenacre to reach West Road, which would be a cheaper option. Jane agrees and invests in paving the muddy strip based on John’s agreement. However, once Jane starts using the road, John changes his mind and tells her she can no longer use it. In this situation, Jane can go to court and request an equitable easement to continue using the newly paved road through Greenacre. This new equitable easement would be legally binding on future property owners.
Conclusion
The purpose of this series was to introduce our readers to the world of shared land rights and the most common easements. However, many more easements exist, such as equitable easements, easements created by law, and easements obtained by private eminent domain, to name a few. We recommend you speak to a qualified legal professional if you suspect that your real property is, or maybe soon, subject to an easement or that your easement rights are being impeded.
The information presented in this article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately to determine your best options.
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By Roberto M. Hernandez and Skyler E. Gray
October 10, 2023
In part one of this series, we introduced the concept of shared land rights and provided some introductory information on easements and some common terminology to be aware of. In part two of this series, we discussed three of the most common easements found today: express easements, implied easements – by necessity, and implied easements – prior existing use.
With that in mind, we are now prepared to quickly dive into two more common easements found today: (i) easements by prescription and (ii) Easements by Estoppel. We will quickly discuss licenses in this article as well.
Prescriptive Easements
A prescriptive easement is entirely different from the previous easements discussed in this series—prescriptive easements are acquired only through the unauthorized use of another’s land. In California, a prescriptive easement may be found where the use of another’s land is (i) open and notorious, (ii) continuous and uninterrupted, (iii) hostile, and (iv) continues for five years. Let’s illustrate with another hypo.
Once again, John owns Greenacre, and Jane owns Blackacre, a neighboring parcel to the east. Because Jane is a daredevil, Jane goes off-roading on a particularly muddy strip of Greenacre on his daily commute to and from work. John knows about Jane’s everyday use as the particularly muddy strip of land because the strip of land is right next to John’s residence. Despite never confronting Jane, John put up “no trespassing” signs to deter his neighbor’s unruly behavior. However, Jane continued to travel through the strip of land daily for over five years. Based on these facts, Jane and the future owners of Blackacre (if Janes takes court action to secure her rights to the muddy strip of land) likely have a prescriptive easement for ingress and egress through the particularly muddy strip of land on Greenacre.
What could John have done to prevent Jane’s use from ripening into a prescriptive easement? John could have gotten Jane to stop on his own accord or by bringing legal action to establish John’s right to terminate Jane’s use of the muddy strip of land. Alternatively, instead of “no trespassing” signs, John could have put up signs that stated something similar to “right to pass by permission, and subject to control, of owner: section 1008 civil code” at both entrances of the muddy strip and less than every 200 feet along the strip. In any event, speaking with a legal professional would also benefit John in preventing the formation of an easement.
With our quick dive into prescriptive easements complete, we will now take a look at equitable easements and licenses.
Licenses and Equitable Easement
A license is very similar to an express easement in that it is permission to use another’s property for a specific purpose, except it is informal and oral instead of written (although a license can be in writing). Importantly, licenses are revocable at any time, not exclusive to the holder, and generally do not transfer long-term interest in the property. However, property owners must be cautious when granting licenses without legal assistance because a license can develop into an irrevocable equitable easement.
A license develops into an equitable easement, becoming irrevocable, when the oral representation (i) is one that the licensee reasonably relied on, and (ii) as a result of their reliance, substantially changed position, (iii) making the creation of a license the only way to avoid injustice. The goal of an equitable easement is a balance between fairness and property rights. Like express easements, equitable easements bind future owners of the involved properties.
Let’s take an example. Imagine Jane, who owns Blackacre, talks to John, the owner of Greenacre. They discuss how much Jane is going to spend on paving a steep windy road on Blackacre for Jane to access West Road, the nearest public street. John suggests that Jane can use a muddy strip of land on Greenacre to reach West Road, which would be a cheaper option. Jane agrees and invests in paving the muddy strip based on John’s agreement. However, once Jane starts using the road, John changes his mind and tells her she can no longer use it. In this situation, Jane can go to court and request an equitable easement to continue using the newly paved road through Greenacre. This new equitable easement would be legally binding on future property owners.
Conclusion
The purpose of this series was to introduce our readers to the world of shared land rights and the most common easements. However, many more easements exist, such as equitable easements, easements created by law, and easements obtained by private eminent domain, to name a few. We recommend you speak to a qualified legal professional if you suspect that your real property is, or maybe soon, subject to an easement or that your easement rights are being impeded.
The information presented in this article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately to determine your best options.
Recent and Popular Articles From Our Blog:
• May 10, 2022 – Using the 1031 to Reinvest
• August 23, 2022 – Understanding Private Road Maintenance
• January 10, 2023 – Website Accessibility Requirements
• February 14, 2023 – Understanding Mediation and Arbitration in RPA
• April 4, 2023 – Understanding Liquidated Damages in a Home Purchase Contract
• June 20, 2023 – Understanding the Lis Pendens
• June 27, 2023 – Do’s and Don’ts Guidelines to a Dental Practice Transition