Easements in California

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September 12, 2018
Author: David Krause-Leemon
Organization: Mckenna Long & Aldridge

An easement is an interest in real property that entitles its owner to limited use or enjoyment of another’s land, usually in a specified manner or for a specified purpose. Easements can be affirmative – entitling the easement holder to use or enjoy the property of another or negative – entitling the easement holder to prevent a particular use or enjoyment of the property of another.

In California, the basic statutory framework for easements is set forth in the California Civil Code, sections 801 through 813. (Copies attached.) There are a number of other provisions in California’s statutory scheme that address easements, some of which will be discussed below. The statutes often use the terms “easement” and “servitude,” interchangeably, so in performing research for law relating to easements, it is often a good idea to search for law relating to servitudes, too.

In discussing easements, it is helpful to understand up front some key terms:

Servient Tenement: The property burdened by the easement. Most often referred to as the “burdened property.” This is the property over which the easement holder enjoys the easement rights.

Dominant Tenement: For an “appurtenant easement’ (or “easement appurtenant”), the property benefited by the easement. Most often referred to as the “benefited property.”

Appurtenant Easement: Sometimes called an “easement appurtenant.” An appurtenant easement benefits the holder in use of a specified parcel of land, the benefited property. The California Civil Code recognizes eighteen types of burdens that can be appurtenant easements. (Cal. Civil Code § 801.)

Easement in Gross: Benefits the particular holder of the easement, as opposed to a particular parcel of land. Not tied to a dominent tenement; however, there is still a servient tenement or burdened property. Most easements are appurtenant. The California Civil Code recognizes the following specific uses as easements in gross: the right to pasture, fishing and taking game; the right of a seat in a house of worship; the right of burial; the right to take rents and tolls; the right of way and the right to take water, wood, minerals or other things from the land. (Cal. Civil Code § 802.)

Affirmative Easement: Allows the holder to perform an act on servient land (e.g., cross over land, conduct business on land, extract water or minerals from land).

Negative Easement: Allows the holder to prevent the servient tenement from specific use of the burdened property (e.g., not building to specific height).

Categorizing the types of easements is an inexact science. While affirmative and negative easements are often thought of as “types” of easements, all easements can be affirmative or negative. Thus, those terms have been addressed above and will not be discussed here. Likewise, it is easy to confuse the specific use associated with an easement with an easement type. Although this section will include a discussion of solar, light, air and view easements, the initial focus of the section is on the following broad types of easements: express easements, implied easements, easements by necessity, prescriptive easements and floating easements.

Express Easements
Because an easement is an interest in real property its creation is generally subject to the statute of frauds. (Cal. Civil Code § 1624 (a)(3).) As a result, most easements are express – i.e., in writing. An express easement can be created through either a grant or a reservation. The granting of an easement is the affirmative creation of an easement for the benefit of another – e .g., A grants B an easement for right of way purposes over A’s land. The reservation of an easement results when land is conveyed with an easement reserved, usually in favor of grantor – e.g., A grants Blackacre to B, but reserves an easement for the benefit of A to cross over Blackacre.

Implied Easements
In certain specific circumstances the law will imply an intent of the parties to create an easement even without the existence of a written document stating such. This is called an implied easement and has even been found when there was no oral agreement between the parties. Parties claiming rights pursuant to an implied easement must demonstrate that: (1) the owner of the property conveyed or transferred one part of that property to another; (2) “the owner’s prior existing use of the property was of a nature that the parties must have intended or believed the use would continue,” in other words that, “the existing use must either have been known to the grantor and grantee, or have been so obviously apparently permanent that the parties should have known of the use;” and (3) the easement itself is “reasonably necessary to the use and benefit” of the dominant estate. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141; See also Cal. Civil Code § 1104.) Diminution in property values “is a factor bearing upon reasonable necessity because the use of the property and its value are directly related.” (Owsley v. Hamner (1951) 36 Cal.2d 710, 720.) The law, however, “does not favor the implication of easements.” (Kytasty v. Godwin (1980) 102 Cal.App.3d 762, 769.) Thus, a Court will not find an implied easement “absent clear evidence that it was intended by the parties.” (Tusher, 68 Cal.App.4th at 142; Horowitz v. Noble (1978) 79 Cal.App.3d 120, 132 [“In other words, a court will not imply the creation of an easement where the parties have expressed contrary intentions”].)

Evidence sufficient to prove a parties’ intent to create an implied easement include “the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted.” (Kytasty, 102 Cal.App.3d at 769.) For example, when a party claims an implied easement arising from a sale of real property the Court may consider representations made to the buyer by the seller, the seller’s representative, or by reference to a map. (Accord Horowitz, 79 Cal.App.3d at 132 [‘The grantor’s intentions can be shown by his representations or by representations by his broker that the use of the easement will pass to the grantee”].)

A. Implied Easements Based on a Seller’s Representations
Representations made by sellers to buyers in contemplation of purchasing real property may create an implied easement. For example, in Kytasty, the Court of Appeal affirmed the trial court finding an implied easement because the road at issue “was established by obvious and apparent permanent use and was actually used before purchase” and “inquiry had been made of [seller’s agent] as to whether the purchase included the right of access and [the seller’s agent] assured [purchaser] such a right was included.”1 (Kytasty, 102 Cal.App.3d at 769.) Moreover, the Court of Appeal noted that “in the instant case [plaintiff] was well aware of the existence of the road, having used it herself … she knew it was passable and was thus put on notice an easement existed as a servitude on the property she was buying.” (Id. at 771.)

In Gagnon v. Adamson (1953) 122 Cal.App.2d 253, 260, the Court of Appeal also affirmed the trial court’s finding of an implied easement. In Gagnon, salesmen told buyers that by purchasing a lot, “they would have the use of the horseshoe road for its full length … and when they were shown the property, each of them was taken around the horseshoe.” (Id. at 255- 256.) The Court of Appeal held that the plaintiffs who needed to use the horseshoe road during wet weather had an implied easement to use the road based upon “the representations made to them when they bought their properties, and upon the fact that the horseshoe road had been and was there at the times of their several purchases.” (Id. at 260; Cf. Danielson v. Sykes (1910) 157 Cal. 686, 690 (“Where streets are laid out and exhibited on the ground and no map is made, but lots are sold upon the oral representation that such streets exist, the appurtenant right to use the streets … is declared to rest upon the doctrine of equitable estoppel”).) The Court of Appeal also found, without elaboration, an implied easement in favor of the plaintiffs who did not require the road to access their property. (Id.) Bradley v. Frazier Park Playgrounds, Inc. (1952) 110 Cal.App.2d 436, 439, demonstrates when a seller’s commercial representations as to the quality and amenities of a property create an implied easement. In Frazier, the trial court found an implied easement preserving recreational areas in part due to advertisements introduced at trial “showing that there was a great deal of emphasis placed on the fact that the area would be devoted to use as a playground and that ownership in lots would carry with it the right to catch fish at various lakes,” and testimony from “salesmen employed by the owners … that they made … representations to prospective purchasers … that the permanent use of the playgrounds and lakes was without  restriction.”2 (Id.) The Court of Appeal affirmed noting substantial evidence supported finding an implied easement based on both the intention of the seller and his agents to create a common area for the benefit of the buyers, and a concordant notation on the subdivision map. (Id. at 442.)

B. Implied Easements Based on Maps
“In certain cases, purchasers of subdivided property have been granted implied easements in streets or other common areas depicted on a subdivision map.”3 (Tusher, 68 Cal.App.4th at 143.) Courts find such an implied easement “based on the implied intent of the grantor and upon estoppel resulting from the buyers reliance on the map showing the streets or other common areas at the time of purchase.” (Id.; Cf. Danielson, 157 Cal. at 689 [“It is a thoroughly established proposition in this state that when one lays out a tract of land into lots and streets and sells the lots by reference to a map … the purchasers of such lots have a private easement in the streets opposite their respective lots”]; Banning v. Kreiter, (1908) 153 Cal. 33, 36;  Prescott v. Edwards (1897) 117 Cal. 298, 30; Day v. Robison (1955) 131 Cal.App.2d 622, 624-625.) However, “an easement will not be implied in favor of the buyer if other facts and circumstances surrounding the transaction indicate that the grantor did not intend to create an easement, or if there is no reference to a map, or if there is no reliance by the purchaser upon the map.” (Tusher, 68 Cal.App.4th at 144; Mikels v. Rager, (1991) 232 Cal.App.3d 334, 361 [no implied easement where map reference was merely descriptive].)

For example, in Tusher, the Court of Appeal declined to find an implied easement based on an out of date subdivision map indicating the location of the subject matter pond. (Id.) Specifically, the Court found the plaintiff’s argument in favor of an easement over the pond “illogical given all of the facts and circumstance,” including a lack of evidence proving plaintiff’s predecessor in interest had viewed and or relied on the subdivision map. (Id. at 144.)

Easements by Necessity
For implied easements, as discussed above, the need for the easement need only be reasonably necessary and convenient for the use and benefit of the dominant tenement, but there must have been an obvious and permanent preexisting use of the easement.

By contrast, for an easement of necessity, there must be an absolute necessity for the easement, but there is no requirement of a preexisting use, and usually there has not been any prior use.

The easement by necessity is of common law origin and is a product of the public policy that favors the productive use of land and discourages the waste of assets merely because of a lack of access. It arises from an implied grant to support the public policy that land should not be rendered unfit for occupancy or cultivation. Based on this policy, in certain limited circumstances an easement may be implied where it is “absolutely essential” as access to a dominant tenement.

Requirements for creation of an implied reservation of easement of necessity by grantor:
1. servient and dominant tenements were in common ownership
2. as a result of a conveyance by the common owner, one parcel became completely landlocked, the easement is strictly necessary for access, and there is no other possible means of access. So long as other means of access exist, even if they are inconvenient or expensive, the court will not imply an easement by necessity.
3. determination of presumed intent of the parties as shown by the physical condition of the respective parcels, the agreements between the parties, the contracts and instruments of conveyance, and all of the surrounding facts and circumstances (majority view). Consequently, the most common easement of necessity is a road providing access to the landlocked parcel. However, courts have also found easements of necessity for utilities.

Prescriptive Easements
Sometimes, an easement can be created in the same manner that a fee interest can be acquired through adverse possession. In the context of easements, the type of easement created through adverse possession is called a “prescriptive easement.”

In order to prove a prescriptive easement in property, the party claiming such easement must demonstrate “open, notorious, continuous, adverse use, under claim of right, for a period of five years. (Cal. Code Civ. Proc., § 321; Civ. Code, § 1007; Lynch v. Glass (1975) 44 Cal.App.3d 943, 950; MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 701.)

The party claiming the easement must demonstrate that the owner of the burdened property must have had actual knowledge of the dominant property owner’s use. Then the issue becomes whether that use was a permissive one, or adverse under claim of right. (Id.) According to MacDonald Properties, “continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence.” (Id. at 702.)

“The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” (Applegate v. Ota (1983)146 Cal.App.3d 702, 711; Cal. Civil Code § 806.) “Rights acquired by prescription are stricti juris and cannot extend beyond the use.” (Hahn v. Curtis (1946) 73 Cal.App.2d 382, 390.) This means that the prescriptive easement includes only those uses to which the burdened property has been used, and those limited rights reasonably necessary to give effect to the prescriptive use. The burdened property owner has all other rights to use the property that do not otherwise interfere with the prescriptive easement. (See, e.g., Anderson v. Southern California Edison Co. (1926) 77 Cal.App. 328, 335-336.)

And if the prescriptive easement owner oversteps his easement so as to interfere with the burdened property owner’s rights, then he is guilty of trespass. If the prescriptive easement claimed amount to a claim of right to the underlying fee (i.e. adverse possession), then the courts will not uphold a finding of a prescriptive easement. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1300 [“when a claimant cannot satisfy the requirements for adverse possession, the claimant may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property”].) “Adverse possession is a means to acquire ownership of land. In adverse possession, the claimant must prove open and notorious use, hostile to the true owner, for a period of five years, and he must also show that he has paid taxes on the parcel of land[4. . . .[¶] By comparison, an easement is merely a right to use the land of another. With an easement, the owner of the burdened land is said to own the servient tenement, and the owner of the easement is said to have the dominant tenement. Every incident of ownership not inconsistent with the enjoyment of the easement is reserved to the owner of the servient  tenement.” (Silacci v. Abramson (1996) 45 Cal.App.4th 558, 562.)5

Floating Easements
Floating easements are sometimes referred to as “blanket” easements. A floating easement has no fixed location and is not limited to a specific portion of the servient (burdened) estate.

Floating easements are often difficult to ascertain – they may be recorded, but not readily observable to the public. This is particularly true because floating easements are not lost or extinguished just because a fixed location has not yet been established.

The owner of the benefited property has the right to the easement, but generally the owner of the burdened property is entitled to choose a location for the easement so long as it reasonably meets the intended use and scope for which the easement was intended to benefit the dominant tenement. Once a location is selected and improved the location then becomes fixed and cannot thereafter be changed. For example, assume a floating easement over Lot A for access to Lot B. If the owners of Lot A and Lot B thereafter agree on a location and construct a paved driveway, the owner of Lot B is not entitled to subsequently relocate the driveway to a more subjectively desirable location.

Solar Easements and Easements for Light, Air or View
A. Solar Easements
Solar Easements are relatively new. They were not initially recognized at common law. In California today, solar easements are a creature of statute. The right to receive sunlight is recognized as an easement in California Civil Code section 801. In Civil Code section 801.5, the Legislature stated that the right to receive sunlight is a “solar easement” and that a “solar easement” is “the right of receiving sunlight across real property for a solar energy system.” (Cal. Civil Code § 801.5.)

Civil Code section 801.5 also sets forth specific minimum requirements for creation of a solar easement, including all of the following:
- specific descriptions of the manner in which sunlight is to reach the solar system, such as the hours during the day in which sunlight cannot be blocked (Cal. Civil Code § 801.5(b)(1));
- any restrictions placed upon vegetation, structures or other objects that might impair passage of sunlight through the easement (Cal.
Civil Code § 801.5(b)(2));
- what terms or conditions permit termination or revision of the easement (Cal. Civil Code § 801.5(b)(3)).

Other statutes also govern solar easements. California Government Code section 65850.5 permits the inclusion of solar easements in subdivision plans. California Public Resources Code section 25982 restricts vegetation from shading solar collectors and provides that trees and shrubs cannot cast shadows that cover more than 10% of a solar collector between the hours of 10 a.m. through 2 p.m. if the tree / shrub was planted after the solar collector was installed.

A. Light, Air and View Easements
Generally speaking, light, air and view easements must be created by an express grant or reservation, and unless created by such an express grant or reservation, a landowner has no easement for light and air over the property of another. Because an easement for light, view and air necessarily restricts the development of the neighboring would-be servient tenement, it is not favored by the law. A sample express easement for view, air and light is attached.

By definition, an easement for light and air cannot be established by prescription. To establish a prescriptive easement, the servient tenement must be used in a manner that its owner has an opportunity to prevent the use. As a practical matter, unless an improvement is constructed on the servient tenement, the owner of the servient tenement cannot prevent light and air from passing across the land and cannot enjoin a neighbor from receiving it. Therefore, an easement for light and air cannot be acquired by prescription merely because it is used by the owner of the dominant tenement.

Implied easements for light and air generally are not recognized in California. There are numerous cases which support this proposition. In most circumstances, when one person owns two adjoining parcels of land, or subdivides one parcel, all easements appurtenant and in use at the time of the conveyance are transferred to the grantee by implication. Common law recognized implied easements for light and air but this has been rejected in California, and no implied easement for light and air is created in favor of a grantee merely by a transfer of property that faces the grantor’s retained land.

However, under narrow and certain circumstances, California courts have recognized implied light and air easements (the common thread among the cases that do so being that they all deal with light and air in front of the building from an adjacent street). In Short Line Associates v. City and County of San Francisco (1978) 78 Cal.App.3d 50, the city constructed a pedestrian plaza adjacent to the owner’s property as part of a project for the construction of a rapid transit subway. The underground portions were utilized as stations for transit facilities, and the surface was used as access to the underground facilities, as well as a restricted pedestrian thoroughfare. The owner proposed to construct an office building that faced this plaza that provided for pedestrian access from the plaza to the building, as well as windows that faced on the plaza. The city determined that the owner was not entitled to these rights of access for light and air, and it rejected the owner’s request for a building permit unless he purchased these rights from the city. The court held that an area restricted for public pedestrian traffic is a “street,” and the owner therefore held the normal abutter’s rights of a property owner adjacent to a street. These rights include private easements in the adjacent street, including the right of ingress and egress from his property to the public street, and the right to receive light and air across the adjacent street.

In Williams v. Los Angeles Ry. Co. (1907) 150 Cal. 592, a switch tower for a streetcar line was erected in front of the property, and the court held that the property owner could recover damages for obstruction of the view, light, and air.

In Kitzman v. Newman (1964) 230 Cal.App.2d 715, a property owner recovered damages for the diminution in his property value caused by the extension of his neighbor’s building across a sidewalk, which impaired his easement of view from a public street.

To get around the difficulty of establishing an implied easement for the preservation of light, air, or view, a property owner will often claim that interference with light and air, or blockage of the view, is a nuisance.

However, such claims seldom succeed because, as a general rule, a structure or other obstruction that is built pursuant to a government permit and in accordance with the building codes does not constitute a nuisance even though it interferes with the view or light and air of other property owners. (Cal. Civil Code, § 3482; Katcher v. Home Sav. and Loan Ass’n (1966) 245 Cal.App.2d 425, 430.) Also, because a property owner has no implied easement for a view or for light and air, he or she cannot complain about the erection of a building or structure, and it is not a nuisance, merely because it obstructs the view or light and air, as long as it is constructed lawfully pursuant to validly issued permits. (See Wolford v. Thomas (1987) 190 Cal.App.3d 347, 358-359; Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 127-128.) Therefore, in the absence of recorded restrictions, an owner can build fences or structures on his property as he pleases, provided he does not create a nuisance, even though it interrupts the passage of light and air to, or otherwise diminishes the value of, adjoining property. Such consequences are merely incidental to the ownership of land in proximity to others.

1 A seller’s agent’s statements disclaiming an implied easement are equally probative as to whether an implied easement burdens a property. (Hewitt v. Meaney (1986) 181 Cal.App.3d 361, 369.)
2 Defendant had “fenced the clubhouse and the playgrounds, and permitted cattle to graze in the enclosed area.” Frazier, 110 Cal.App.2d at 441.
3 Similarly, in Pacifica Homeowners’ Ass’n v. Wesley Palms Ret. Cmty. (1986) 178 Cal.App.3d 1147, 1156, the Court of Appeal declined to read an implied easement for view protection into the defendant’s use permit. Rather, the Court ruled against the plaintiffs claiming the view easement because “a property owner has no natural right to an unobstructed view” and “in the absence of any agreement … creating a right to an unobstructed view, it cannot be said [defendant] acted in bad faith or interfered with any right.”
4 See, e.g., Cal. Code Civ. Proc., § 325; see also, Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1187 [“The law does not allow parties who have possessed land to ignore the statutory requirement for paying taxes by claiming a prescriptive easement.”].
5 In order to avoid proof of payment of taxes in a case of adverse possession, the claimant has the burden of demonstrating that there was no levy or assessment of taxes. In the case of a prescriptive easement, although a claimant need not generally show payment of taxes , if taxes are assessed against the easement, the claimant must show payment of any such taxes. (Id.)

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