Default Featured image

Neighbor Law – How Are Easements Extinguished?

Easements and Real Estate Law by Peter N. Brewer, Esq.

The more rural the property, the more likely it is that landowners who share a common boundary will have various rights of way or easements with their neighbors to accommodate hillsides, steep turns, and limited access points. This is often the case in Los Gatos, Saratoga, and along the Santa Cruz mountains. However, over time, use of the land changes, main roads are built and so the need for an easement can diminish.

In California, easements are made either by express grant, or by use. Easements can be extinguished by express grant, by abandonment by the dominant tenement (the person with rights to cross over another’s land) or by the servient tenement (the land burdened by the easement) reacquiring the easement by adverse possession.

There is a leading case on this issue from the California Supreme court that has all the facts that we often see in boundary disputes. The Chapman family owned many plots of land in Los Angeles County. As they sold off parcels, they reserved easements, and in some cases, dedicated rights of way for public use (to the city of Pasadena).

Eventually, the Glatt family bought a parcel from the Chapman Estate in 1938 — ‘Reserving unto the grantor, its successors or assigns, an easement for road purposes, together with the right to dedicate the same to the public use over the easterly 30 feet of the herein described parcel of land.’ [Glatts v. Henson, 31 Cal. 2d 368, 369, (1948)]

All told, the Chapmans and their successors appeared to reserve and quitclaim easements about seven times in as many years. The Glatts obtained some quitclaims and then sought to quiet title as to all of the easements affecting their parcel. It went up on appeal on the remaining issue of a portion of the 30 foot easement having been extinguished by adverse possession. The Glatt Court noted:

“The evidence is without dispute that plaintiffs constructed buildings on the 17 1/2 foot strip and have since maintained them for more than five years preceding the commencement of this action. The Simpsons in their answer to plaintiffs’ petition for a hearing in this court state: ‘In this case appellants (plaintiffs) have placed certain buildings on a part of the thirty-foot strip.’ The evidence is also uncontradicted that plaintiffs have paid the taxes on their parcel 4. No permission to erect and maintain the buildings was obtained from the easement claimants. The 30 foot easement has not been used except for the east 12 1/2 feet thereof. Thus we have a situation where the owner of a servient tenement erects buildings and maintains them for a period of over 5 years upon a part of an easement for road purposes over his property and owned by the dominant tenement. He has paid taxes on his fee simple interest but there is no evidence whether taxes were levied, or if levied, were paid, on the easement by the owner of the servient tenement adverse claimant here.”

Adverse possession in California is statutory and usually the most difficult element to satisfy is the one requiring the possessor (squatter) to pay property taxes. However, in an easement situation, the servient tenement is almost always already paying taxes since they are already the record owner of the burdened land.

The Glatt fact pattern is interesting because the Glatts built buildings in the 30 foot easement. Normally easements are for ingress and egress. Clearly, nobody was using those easements to get in and out of their property if they failed to notice or care that a building had been there for over five years (which is the statute of limitations). Easements by their nature, are a shared use. However, the Glatts clearly established an exclusive use, which is fundamental to an adverse possession claim. The Court awarded the Glatts fee simple interest to the portion of the easement where the buildings were, thereby extinguishing a section of the easement. (Note: the true owner may have abandoned as well, but that was not the main factor in the Court’s ruling.)

The Glatt case is in stark contrast to the usual fence boundary cases. When a neighbor tries to exclude the true owner with a misplaced fence, the neighbor is not likely to be paying property taxes on the strip of misappropriated land. The trespassing neighbor would normally lose any adverse possession claim.

Only in very rare cases, such as the facts presented in Hirshfield v. Schwartz can the trespasser prevail and obtain any kind of property rights. The Schwartzes (and predecessor) had built a swimming pool and erected a chain link fence down part of what was presumed to be the property line. They also built waterfalls, a koi pond, a stone deck, a putting green and a sand trap, as well as a block wall. The Hirshfield Court granted the Schwarts an “equitable protective interest” that terminated when the Schwartzes moved and ordered the Schwartzes to pay the Hirshfields the fair market value of that strip ($23,000). So called equitable easements are the topic for another article. Until then, the general rule is that the owner of record would prevail in most backyard fence disputes, since the squatter cannot prove payment of property taxes.

If you have a real estate law or lending law related matter our knowledgeable attorneys can help you find adequate solutions. Give us a call at (650) 327 -2900 and make an appointment or to ready more about our firm and review our attorney bios visit us on the web at

Latest Posts

Real Estate Contracts & Transactions

Out of Contract? Not So Fast…

by Adam Pedersen, Esq. on August 28, 2018

In the highly-competitive real estate market in California, agents are being more aggressive in enforcing contract terms. So before you tell your client that you are “out of contract”, you might want to be sure the contract is actually cancelled! [Read More]

Landlord & Tenant Law

What a Three-Day Notice to Pay Rent or Quit Really Means

by Brewer Firm Team on September 20, 2018

It is after Labor Day weekend and that means school supplies, summer vacation credit card bills, and preparing for the holidays. With all these added costs, the tenant may not have enough money to pay rent and the landlord serves [Read More]

Real Estate Contracts & Transactions

Can A Buyer Back Out of a Non-Contingent Offer?

by Simon Offord, Esq. on October 2, 2018

In my last article, we discussed liquidated damages in the context of a residential real estate purchase contract.  This article will examine whether a buyer may have a right to back out of a contract and receive their full deposit [Read More]