Legal And Practical Issues of Easements in California

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July 23, 2018


1. Incorporeal Hereditaments.
An incorporeal hereditament is something inheritable and not tangible or visible. Estates are corporeal hereditaments

2. Easements vs. Servitudes

Servitude is essentially the opposite side of an easement. An Easement is a right to use of real property, whereas servitude is essentially the burden created by that use. This results in the term Servient Tenement vs Dominant Tenement

3. Leases

A lease creates an exclusive right of possession of real property for a specific period of time which is an estate in land. An easement merely creates an interest or use which is nonpossessory. Oil and gas leases can create interests that are similar to easements and profits. Phillips Petroleum Co. v. County of Lake, 15 Cal.App.4th 180, 185 (1993). Leases over 30 years are deemed real property for tax and other purposes Sometimes there is an important reason to avoid creating or avoiding the creation of a possessory interest. In Golden West Baseball v. City of Anaheim, 25 Cal.App.4th II, 30 (1994), determining whether a long-term agreement between the owners of the Angels baseball team and the City of Anaheim was a license or a lease.

4. Profits
A profit, or "profit a prendre" is a right to take either a part of the property or something from that property such as mineral or water, and is an estate in real property. Miller and Starr, California Real Estate, 3rd. ed. (2000), §15.1 et seq. Examples include right to take fish, remove timber or crops, or take water, gravel, minerals, such as oil and gas. The California Civil Code appears to include profits as "easements" and helps perpetuate confusion between the two concepts.

California Civil Code Section 801 is entitled "Easements; servitudes attached to land" and provides "the following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements (2) the right of fishing; (3) the right of taking game; ...(5) the right of taking water, wood, minerals, and other things;..." California Civil Code Section 802 also provides for certain "unattached" servitudes which may be granted and held though not attached to or benefiting any particular land, including: (1) the right to pasture, and of fishing and taking game; ...(6) the right of taking water, wood, minerals or other things.
The two sections appear inconsistent, but profits may be unattached to any real property, adjacent or otherwise, and when they are attached, the difference between profits and easements is not clear.

Like easements, profits can be in gross or appurtenant; may be written or oral, recorded or not; can be for limited or unlimited duration; and, both the owner of the property and of the profit can have mutual and reciprocal rights in the use of the surface area effected. Unless
specifically withheld, a conveyance of a profit "impliedly transfers" to grantee certain secondary easements in the servient tenement to allow the profit holder the right to enter upon property to exercise profit removal rights.

Like an easement, the owner of the servient tenement retains all rights to use and enjoy the surface that do not interfere with the profit rights granted, but cannot do anything that increases burden on profit owner or changes rights. Wall v. Shell Oil Co., 209 Cal.App.2d 504,
513 (1962).

5. Licenses
A license is little more than a revocable easement and is generally revocable or terminable at will and creates something less than an estate in property and usually grants authority to a person to perform an act on property pursuant to the express or implied permission
of the owner of that property.

A license may be created orally so while it is an "interest in land" it does not come within the statute of frauds (Civ. Code 1624).
A license usually cannot be transferred, conveyed or assigned and any attempt to do so could terminate the license, but some authorities recognizes the possibility of a revocable interest that is not intended to be personal and would therefore be transferable. A conveyance of
property that is burdened by a license usually revokes the license. Destruction of the servient tenement automatically revokes the license.
An easement on the other hand creates a present interest in real property that is subject to the Statute of frauds and is protectable, usually irrevocable, and compensable. A license does not create or convey any present interest in property but merely makes lawful an act that might otherwise constitute a trespass.

One court stated, "a license is a person or entity authorized to do a particular act or acts on the property of another without possessing any estate therein. A license in this sense is a personal privilege conferred either by a written or oral agreement, to perform a certain act or acts without conferring any interest in the land." Jensen v. Kenneth Mullen Co., 211 Cal.App.3d 653, 657 (1989).
Licenses can become "irrevocable" under equitable principles if the license holder significantly improves the license area with the knowledge of the servient tenement owner. Such irrevocable licenses are indistinguishable from easements, but unlike easements, do not create permanent rights to use another's property. Licenses coupled with interests are often irrevocable as long as the licensee retains the interest.

For example, where a licensee under an oral license spends money, or its equivalent in labor, in the execution of the license, the license can become irrevocable and the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for. Cooke v. Ramponi, 38 Cal. 2d 282, 286 (1952).

Under theories of equitable estoppel, a license may be declared to be irrevocable to prevent the licensor from perpetrating a fraud upon the licensee. In the Cooke case, the owner of the servient tenement allowed the Cookes to improve a roadway by grading, paving and
maintaining it and then later tried to block their access.

6. Covenants, Conditions and Restrictions (CC&Rs)
Covenants, conditions and restrictions are similar to easements since they are servitudes that put limitations on the use of a particular property. Often some formal CC&Rs by their very terms can create easements that impact or burden the encumbered real property. Covenants and restrictions can also be created by language in a deed or other written agreement to require a land owner to do or refrain from doing a certain thing.

Covenants can be created by any landowner by deed, by agreement between landowners, or by recorded tract restrictions and can create burdens on land either conveyed or retained. Covenants are generally defined in the Civil Code §§1460 et seq.

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