I have been a Realtor for 18 years. I am currently licensed 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 upfront, 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 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 grazing, fishing, or hunting rights on someone's property.
Easements are an encumbrance or burden to one's 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 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 gives 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.
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:
- The right of pasture
- The right of fishing or hunting
- The right of taking game
- The right-of-way
- The right of taking water, wood, minerals, and other things
- The right of transacting business upon land
- The right of conducting lawful sports upon land
- The right of receiving air, light, or heat from or over, or discharging the same upon or over land
- The right of receiving water from or discharging the same upon land
- The right of flooding land
- The right of having water flow without diminution or disturbance of any kind
- The right of using a wall as a party wall
- The right of receiving more than natural support from adjacent land or things affixed thereto
- The right of having the whole of a division fence maintained by a coterminous owner
- The right of having public conveyances stopped, or of stopping the same on land
- The right of a seat in church
- The right of burial
- The right of receiving sunlight upon or over land as specified in Section 801.5
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.
- An 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.
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 five 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 Schoolhouse Rock videos. I think she recorded it to help her remember what she was learning in college.
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.
I would love your comments and suggestions. Thanks!
iohn barry on June 19, 2018:
I own a property. the owner, in 1960, of this, granted a recorded "fire escape" easement to the adjoining property owner. She now claims it gives her unlimited rights to use the fire escape for regular, non-emergency, roof access, via the fire escape..which occupies the easement area of my real estate. In all the years, I have thwarted this type of use... but never with a written agreement between me and the prior owners. They would just put up a 30 foot ladder, if they were pressed... We have a trial date in September... Am I likely to win?
Megan on June 19, 2018:
I have a few easement questions...
My neighbor has right of use on our driveway/private road to access his property. He has just received county approval to increase his farm 10 acre farm by 15 additional acres. This will more than double his use of my private road. The county has said easement is a civil issue they will not comment on.
1 - Can he legally increase the road use this much?
2 - Is there a way to ensure he helps maintain the road as he put 75+% of the wear and tear on the road, but does not help. Now it will be far more use:(.
3 - What is the simplest legal route to understand my easement rights, and address them with my neighbor.
Unfortunately, the neighbor owns the land for farming, does not live insight and has been unreachable for a simple chat.
Mary Janney on May 19, 2018:
I have a dominate appurtnenate paved easement to my house across the neighbors currently undeveloped property. The neighbor now wants to develop his property and needs to lower the driveway 6 feet so the slope to his proposed house will meet fire department standard. This will increase the slope from the proposed driveway to the parking pad I own to a degree that access in snow and ice conditions will another be possible. What rights do I have? Will I be forced to excavate my pad down 6 feet, build retaining wall, and add 10 additional steps to my house as the owner implies is my only choice and my expense. Property is in Placer county, Ca.
A Mensch on July 10, 2017:
I live on a dead end easement road with three residents. The owner of the second home (nasty man) walks up ans down the roadway for hours to be a nuisance. The property at the end has fenced, gated and posted private property. So far nasty man hasn't walked past the property line. But now that nasty man is having issues with owner of last house he has threatened the owner that he will walk in front of his house. Does nasty man have public easement access right to cross property line on posted property?
Andrew E. Karsh on May 20, 2017:
If I am the Dominant tenement and my driveway to access my property is a granted easement across my neighbors land as the Servient Tenement. My question is do I have the right to install a gate on my driveway solely for the purpose of my own security as long as it does not interfere with my neighbors access to his property? Also what if my neighbors build their fence 6 inches inside the 20' wide driveway easement? Why do they have a right to build on my easement and I do not to build my own gate?
JosephP7 on November 28, 2016:
Anybody know if the definition of "public utility easements" covers homeowners' private sewer laterals and connections to a sewer main? I thought the definition was for an easement belonging to the public utilities, but my neighbor says her private lateral is covered and she is going install it across my side yard. Would love any advice.
jennifer on November 11, 2016:
can i park a camper on an shared easement driveway?
Ken on October 03, 2016:
May a HOA sell an easement?
If yes, what is required for the HOA to sell an easement?
Jude on September 10, 2016:
Can you tell me the best way to go about finding out the value of a light and air easement in Los Angeles CA? A neighbor wants to "purchase" one from me so when I sell another owner can not build a second story and block their views. I am thinking about it but really would like to know the true approx value since they're not offering very much. I was also told the value of their home would also be affected if their view is blocked. We live in the hills. Thank you for ANY advice you can give me. These people are somewhat obsessed with getting one from me.
Dorsi Diaz from The San Francisco Bay Area on March 18, 2016:
I'm curious if you would know the answer to this question. Behind our house is an alleyway which we have used for over 50 years to access our backyard, where we have stored cars, boats, etc. The alleyway has a commercial building on which the city has now allowed to be rezoned to residential. Most of the people on our block also have access to this alleyway which they use to access their backyards too. Now a developer wants to squeeze in 35 town-homes onto the property and there will be 3-4 stories of people looking into our yard, and they will be taking away our access to our yards. The home I live in a single family story home and so are all the rest of the homes. Do you think I have any recourse? Thanks.
Melissa on September 11, 2013:
Can you clarify - is a easement required to run utility lines from the main branch to your home, e.g. the over head power lines to the electrical panel.
Rtimes (author) from Placerville, California on March 10, 2012:
Thank you so much for you comment, Nancy. I am very glad to know that you found the information useful. Thank You. Please check out my other Rtimes Hubpages. I look forward to hearing from you again.
n. Williams on February 18, 2012:
Great article with helpful info!