Real Estate Easement Litigation Issues

Sometimes owners of adjoining properties get along just fine. Other times disputes arise that need to be sorted out in court or through legal negotiations. Easements are a common source of neighborly discontent. These legal rights can be a blessing or a curse depending on whether your property is benefitted or burdened by the easement.

What Is An Easement?

The California Civil Code defines “easement” in section 887.010 as, “a burden or servitude upon land, whether or not attached to other land as an incident or appurtenance, that allows the holder of the burden or servitude to do acts upon the land.” In other words, an easement can encumber your piece of property by allowing an adjoining property owner to do certain things on your land such as cross your land to reach a public road.

California law recognizes four types of easements:
1. Express Grant. This is where one landowner expressly gives the easement to another landowner in writing. The document should specifically state what the second landowner is allowed to do on the other piece of property.
2. Implication. If one parcel of land is divided into two or more parcels, access to public roads or infrastructure may be denied to a parcel. The law may assume that access is implied for the landlocked parcel if the easement has been openly used, so this easement doesn’t need to be written.
3. Necessity. Where there is no possible access to a landlocked property, an easement by necessity may be formed. If the landlocked property owner has any way to create access to his land without crossing other parcels, this easement does not apply. This type of easement is very limited in scope.
4. Prescription. This type of easement can be created if someone has been using a property they don’t own in an obvious way for a continuous period of five years or more. Under the legal theory of adverse possession, the use must be adverse to the other property owner’s interests. If the property owner grants permission to the user, then the easement is not by prescription. No written documentation is required to establish an easement by prescription.

Common Issues Regarding Easements

In California, the person who owns the easement must maintain it. Problems arise when the easement holder uses the easement but doesn’t maintain it. This situation can lead to animosity and eventually legal action. Other times, disagreements may arise over the size of the easement or the scope of its use. Sometimes neighbors just don’t get along and they use the easement as a means to make the other neighbor’s life miserable.

Easements are transferrable upon sale of the “servant property” which is burdened by the terms of the easement. If a new buyer has notice of the easement by deed, public records, or through a reasonable inspection, that buyer accepts the property subject to the easement, whether they like it or not. If this is a problem, the buyer must bring an action to quiet title to try to avoid the easement.

If the two landowners have entered into a written express easement and the owner who granted the easement wants to end it, he or she must give notice to the other party. Legal issues can arise if the easement user doesn’t want to give up the easement.

If the easement hasn’t been used for a certain amount of time, the owner of the property encumbered by the easement can claim that the easement has been abandoned and seek to remove the easement from the record title of the land. This action must be brought in the superior court of the county where the subject land is located.

According to California Civil Code section 887.050, an easement is considered abandoned if all three of the conditions listed below are met for a period of twenty years before starting legal action to terminate the easement by abandonment:
• (1) The easement has not been used.
• (2) A separate property tax assessment has not been made for the easement or, if there is an assessment, no taxes have been paid.
• (3) No document providing evidence of the easement has been recorded.

If someone objects to the action to consider an easement abandoned, they can file a notice of intent to preserve the easement before a final judgment is made about the status of the easement. Once a judgment has been entered granting the abandonment, all property covered by the former easement is conveyed back to the property owner of the servant parcel.

How To End An Easement

If your property is encumbered by an easement that you would like to terminate, you have a few options. Consider:
• • Negotiating a written contract with the easement holder to end the easement by agreement
• • Purchasing the adjoining property that benefits from the easement
• • Other legal alternatives to limit or clear the easement
• • File suit for trespass
• • Quiet title or declaratory relief action to determine who owns the easement, who has the duty to maintain it, and the scope of use.

Attorneys Noreen Evans and Deirdre Kingsbury understand that property disputes can arise and damage neighbor relationships. If you have an easement dispute, they can explain your options and help you settle your case, if possible, to preserve harmony. They can also vigorously advocate your position, if necessary to protect your rights. At Evans Kingsbury LLP we are trial lawyers with decades of trial and negotiation experience. Call us today at (707) 596-6090 or fill out our easy contact form to discuss your case.