How Are Easements Created? Part Two.

Simon Offord

by Simon Offord on November 13, 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 is the second article in a series discussing the more common ways to create an easement in California.

Easement by Prescription

An easement by prescription is created when someone who is not the owner of record may acquire a right to use the land based on the time and nature of his or her use. This typically happens between neighbors of adjoining parcels.

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.

A prescriptive easement only entitles the encroacher a right to continue to use the land for some limited purpose, namely the historical use. However, California courts have determined that there is no such thing as an “exclusive” prescriptive easement. Therefore, one may not obtain an easement by prescription that prevents the rightful owner of the land from using and enjoying their own property. For example, fencing would be an attempt to exclude the true owner. Thus, even when a party may have the right to use an easement, they may not have a right to fence it off.

As with an easement by necessity, this type of easement is not automatically created, and thus will require litigation and a court order.

Equitable Easement

When the user cannot assert grounds for an easement by way of prescription or necessity, or has an express 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 affected property owner would suffer little harm from the continued use.

Obtaining such an easement will require litigation and convincing proof satisfying each of the above elements.

Assessing Your Rights

Analyzing whether you may have a 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. 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 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 other ways that easements may be created in other ways, including by implication, that have not been discussed in this article.

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


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avatar Michael Bruss December 4, 2012 at 2:46 am


Have found the newsletters very informative and especially the recent articles on easements. My wife and I have country property near Davis. On one side of our property is a dirt road. This road is used by us and the general public, primarily recreational pedestrian traffic, but also horseback riders and the occasional vehicle. There are no utilities along the road and no one needs to use the road as sole access to their property.

We really don’t mind the current rate of traffic, which is low, but we would not want it to increase, and someday we might want to fence the area for livestock.
By letting people use the road now are we creating an easement which might prevent us from limiting access in the future?


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