How Are Easements Created? Part One


Simon Offord

by Simon Offord on October 8, 2012

in Easements, Real Estate Law

Before discussing how to create an easement, we must understand what an easement is. An easement is a non-possessory interest for the use of real property belonging to another for some specific stated purpose. Put simply, an easement is a certain right to use the real property of another without actually owning the property.

Historically, easements were only allowed for right-of-way, support, light and air, and rights pertaining to artificial waterways. As the law has evolved, courts have begun to recognize easements for a much broader range of uses, including but not limited to utility lines and scenic views. This article discusses two of the more common ways to create an easement in California. Stay tuned for a future articles that will discuss the less common ways to create an easement.

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. It is advisable to 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.

An express easement should be contained in a Preliminary Report for the property, as the easement generally must be recorded in order to be valid. The new trend for many title companies is to embed links into the Preliminary Report that will provide direct access to the specific document creating the easement. This allows one to easily view the document creating the easement to make sure they understand the rights and responsibilities arising from the easement.

Easement by Necessity

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

How does such a situation arise? An easement by necessity is created when the two parcels of land 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 and inaccessible other than over the other property.

This situation is more common in rural areas or when an owner subdivides and sells off a parcel, but overlooks or neglects to consider access to the remaining parcel.

An easement by necessity is not automatically created, and thus unless the property owners are able to agree on the terms of an express easement, obtaining an easement will require litigation and a court order.

Assessing Your Rights

Analyzing whether you may have the 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.

The above descriptions provide the basic considerations for the creation of certain types of easements, and whether or not an easement does in fact exist will hinge on additional factors specific to your particular situation. There are several other ways that easements may be created, including by prescription or implication, that will be discussed in a future post.

If you think you may need legal representation regarding such matters, don’t hesitate to contact our firm at www.BrewerFirm.com or call us at (650) 327 – 2900.

 

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{ 1 comment… read it below or add one }

avatar Timothy Redd, PLS December 5, 2012 at 9:19 pm

Great article Simon. Thoughtful insights. Much useful information for your readers. Reminder, written decriptions must be prepared by a person licensed to practice land surveying. A written description need not be prepared based on an on-the-ground-survey but in many instances a survey may help to prevent confusion or difficult-to-locate easements. Also, a thourough survey such as an ALTA Land Title Survey may uncover evidence of use or other unwritten rights which could ripen into a easement or other interest in title.
Say hello to Peter for me. It’s been a long while since we talked but I’ve been following his newsletters. They are getting to be very impressive.
Tim

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