Monday, October 02, 2017 / by Nicole Solari
4 Types of Easements
An easement is a right of someone else’s property for a specific purpose. Under California law, an easement may be established by 1) Express Grant, 2) Implication, 3) Necessity and 4) Prescription.
Easement by Express Grant
An express easement is created when the owner of the servient estate actually gives the easement to the owner of the dominant estate. The party benefits from the easement is the dominate estate or dominate tenement, while the party suffering burden from the easement is the servient estate. The express easement can simply be created by deed, contract, or other written instrument.
Easement by Implication
An easement by implication is generally created when a tract of land is divided into two or more parcels. For example, a single parcel was divided into parcel A and B. Parcel A has a road that has access to public roads which Parcel B does not have access to the public roads unless the paved road uses A’s roads or B constructs a new road. A California court could imply an easement here if it finds that A and B intended to continue the use of the road when the land was divided.
However, a claimant of implied easement must prove strict necessity for the easement, such as when a parcel of land is landlocked without access from A’s portion and unity of title. To satisfy the strict necessity requirement, the claimant must demonstrate that there is no other less convenient way to access the property. Unlike express easements, implied easements need not be in writing.
Easement by Necessity
An easement by necessity is similar to the easement by implication. The only difference is that the easement by necessity is created if there is no possible alternative access to one’s property, for example a complete landlocked parcel. Going back to our previous example, if B has no access to public roads other than by crossing A’s portion, the easement by necessity can be established. However, if B can construct a road, then the easement would not be found. Therefore, this easement can be created only in very limited circumstances.
Easement by Prescription
Under California law, an easement by prescription may be created when a person has used the easement openly, notoriously, and continuously for a period of five years. The claimant's use of the easement must be hostile or adverse to the owner. If the owner has given permission to use the land, an easement by prescription will not be found. Similar to the easement by implication, no writing is required for creation.
The Civil Code provides that all easements are transferable. Easements appurtenant are attached to the land and are transferred automatically when the servient or dominant tenement is sold to a new owner. When the dominate estate is transferred, the easement is passed to the buyer of the dominate estate. However, when the servient estate is transferred, the new owner obtains the property subject to an existing easement as long as the purchaser has notice by the deed, public records, or by a reasonable visible inspection of the property. The new owner can later seek to perfect their interest by initiating a quiet title action.