A Quick Guide: Property Easements in California
Why Care About Easements?
Simply put, you should. Easements give or take away a right of usage and this is important to the quality of life and the enjoyment you have of your property. Easements are also something that cannot be ignored.
If you don't know if there are any easements on your property, you can check with the county where the property is located. You can also hire a title company or attorney to check for you. If you are in the process of purchasing a property be sure to carefully review the title work regarding easements and their locations.
If there is anything that you are uncertain about, ask the title company, your real estate agent, a surveyor. or an attorney as to your rights in any given situation. Although an attorney visit may cost you up front, in the end it may save thousands of dollars and a lot of heartache because of a misunderstood easement.
"Appurtenant" or "In Gross"
There are many things to understand about easements in California. This article should help you have a better general understanding of two classifications of easements—in gross and appurtenant—as well as their associated rights under California law as set forth in our civil codes. California Civil Code Section 801 contains the statutes regarding easements. I have included a portion of that statute listing of a variety of situations that are common in both appurtenant and in gross easements.
An easement as defined by the California Department of Real Estate is "a right, privilege or interest limited to a specific purpose which one party has in the land of another." Easements are categorized as an easement appurtenant, a transferable real property interest, such as a driveway across an adjacent parcel, or an easement in gross, a personal right, which is usually not transferable. An example of an easement in gross could be a grazing, fishing or hunting right on someone's property.
Easements are an encumbrance or burden to one property and a benefit to another property or person. The parcel that benefits from the easement is the dominant tenement and the property that is burdened with the easement is the servient tenement. Easements have an effect on the title to a property and are an appurtenance to real property.
An appurtenance is anything attached to the land (a fixture or right) that is to be used with the land for its benefit and that transfers with the property. It is the rights and privileges that belong to and transfer with a property. Some typical appurtenances are water rights and mineral rights, An appurtenance is said to run with the land because it transfers with the property to the new owners at the same time the property is transferred. Appurtenant easements transfer with the deed and are recorded easements.
The most common easement in California is the utility easement, an express gross easement. This give the right of access to public and private utility companies for maintenance, repairs, installation, or upgrades to services. These are recorded gross easements and are appurtenances, meaning they transfer with the property. This type of easement is usually set up by the land developer in the initial subdividing; it can, however be designated and recorded later. The utility company does not own an adjacent parcel or dominant tenement but maintains a right to put up power lines or poles. They have an express easement, a personal right of access, and it encumbers the servient tenement.
Loren Goldman First American Title Interview
A Portion of California Civil Code 801
This is what is listed in CA Civil Code 801. This is not a list of types of easements, but things that may become easements. The following land burdens, or servitudes upon land, may be attached to property as incidents or appurtenances, and are then called easements:
1. The right of pasture
2. The right of fishing or hunting
3. The right of taking game
4. The right-of-way
5. The right of taking water, wood, minerals, and other things
6. The right of transacting business upon land
7. The right of conducting lawful sports upon land
8. The right of receiving air, light, or heat from or over, or discharging the same upon or over land
9. The right of receiving water from or discharging the same upon land
10. The right of flooding land
11. The right of having water flow without diminution or disturbance of any kind
12. The right of using a wall as a party wall
13. The right of receiving more than natural support from adjacent land or things affixed thereto
14. The right of having the whole of a division fence maintained by a coterminous owner
15. The right of having public conveyances stopped, or of stopping the same on land
16. The right of a seat in church
17. The right of burial
18. The right of receiving sunlight upon or over land as specified in Section 801.5
Just for Fun
Does Your Property Have an Easement?
In Gross or Appurtenant
How Is an Easement Created?
There are four basic ways to create an easement.
- Express grant
- Implied grant
There are several ways to create an easement that fall under those four ways. Here are some:
- By contract in a sale or transfer of a property
- By grant, either implied or express
- By reservation
- If a parcel is land-locked
- By condemnation
- With continued long term use
- By mutual agreement
- By implication
- Through eminent domain
- By estoppel
- Through the court system
- Fences or shared walls
- Easements should be recorded in the county where they are located.
- Easements must have definable limits which should be precise and specific in the description being recorded
- Easement can not be expanded by the dominant tenement without the consent of the servient tenement
- Easements may be terminated or abandoned causing a loss of the easement right
"Easement Day" Song: Summary of Easements
A Fun Recap
In this song she sings about 20 years of uninterrupted usage to acquire a prescriptive easement. That is true in another state but not in California. In California it is only 5 years of uninterrupted use of the desired easement to obtain a prescriptive easement. The rest of the song is fun and in the genre of the cartoon learning fun of the Schoolhouse Rock Videos. I think she recorded it to help her remember what she was learning in college.
Just For Fun
What is most important to you?
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.