An easement is a legal interest in real property that gives you the right to use another person’s property. A common example of an easement is when one person is given the right to cross or access a road across another person’s property. Other common examples of easements are phone, gas, and power lines. In addition, sewage and water pipes are also common types of easements that are installed on private property. There are four types of easements in California: express, implied, easements by necessity, and prescriptive easements.
Express easement arises when a landowner grants an easement to another person by written agreement. The express easement agreement can be narrow or broad in scope; it all depends upon what the original parties agreed to in writing. Generally, the landowner is free to use the property as he or she wishes, as long as it does not interfere with the granted use of easement.
An implied easement, on the other hand, arises without written agreement. The easement comes about when there is a prior use on the property. Implied easements are highly technical and an attorney should be consulted for further information.
However, here is an example to illustrate the concept. Landowner Elijah owns a piece of property called Blackacre. He uses his own dirt road across Blackacre for access to his home and to a nearby public street. Elijah then subdivides Blackacre into two parcels. Elijah may have an implied easement of access across the new subdivided parcel even though he didn’t get an express easement in writing if the all the technical requirements of an implied easement were satisfied.
Similar to an implied easement, an easement by necessity can arise when there is no possible alternative access to crossing the land and getting to a public road. These types of easements must be created by a court order.
Lastly, a prescriptive easement can be acquired when a person uses another person’s property without the landowner’s consent, but in a way which the landowner would be reasonably aware that the person is using the land. There are specific time requirements and other use requirements for this easement to be obtained.
The bottom line is that easements are often complex and confusing. However, as property lawyers, we have extensive experience assisting land and property owners through the confusing area of easement law. If you have questions about easements, land use, development law, or real estate law, contact us and we would be glad to assist you.