Easements and California Real Estate

Author: Staff

Ownership of real property includes certain exclusive rights. The owner of real property has the right to improve the land, such as by building a house or other structure. They also have the right to exclude other people from the property without permission. But these and other rights are subject to limitations. A property owner can make improvements to the property, provided the improvements do not violate local zoning ordinances. The right to exclude others from one’s property might be limited by easements attached to the property.

What is an Easement?

An easement is a nonpossessory interest in real property. That means that the owner of an easement does not have the right to actual possession of the property. California real estate investors should check the title history of a property carefully to look for easements.

Positive vs. Negative Easements

An easement can either give others the right to access portions of the property for limited purposes, known as a “positive easement;” or restrict certain uses of the property by the owner, known as a “negative easement.”

A positive easement is one that allows the easement owner to use some part of the property for a specific purpose. California law identifies various purposes for which property owners may grant easements, including:
– Passage over their land, known as a right-of-way;
– Hunting, fishing, or other recreation; and
– Obtaining “water, wood, minerals, and other things.”

If a California property owner grants a private right-of-way across their land, the owner of that easement has a responsibility to maintain that part of the property, according to California law.

A negative easement restricts the property owner from using the property in certain ways. A common example involves restrictions on building height, in order to preserve adjacent property owners’ access to sunlight and views of the surrounding area. California law specifically provides for a “solar easement,” which restricts buildings that prevent neighboring properties from receiving sunlight needed for solar panels.

Express vs. Implied Easements

When a property owner grants an easement to another person, this is know as an express easement. Other types of express easements are created by statute. Utility easements, for example, allow city or county employees to access power, gas, water, and electric lines located on private property. Condominium projects include easements that allow access to common areas. State law also allows property owners to grant conservation and greenway easements, as well as easements for coastal access.

Implied easements are created when the circumstances show that an easement is necessary and that the parties have agreed to the easement. For example, an implied easement exists when one person’s property is inaccessible from any public road except by crossing over another property, with that property owner’s permission.

Prescriptive Easements and Adverse Possession

A prescriptive easement resembles an implied easement, except that it occurs in the absence of the property owner’s permission, based on the legal theory of adverse possession. California law allows someone to claim a prescriptive easement when they have used the property openly, but without the owner’s permission, for at least five years. A person who uses a path across someone’s land for the required period of time, such as for a hiking trail or as a shortcut, can claim a prescriptive easement.

Terminating an Easement

A property owner can terminate an express easement that they have granted by providing notice to the easement owners. They can also seek to declare an easement abandoned if it has remained unused for a sufficient period of time.

What is an Easement?

Positive vs. Negative Easements

Express vs. Implied Easements

Prescriptive Easements and Adverse Possession

Terminating an Easement

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