Debra Grimaila - Orange County Business Lawyer P.C.

What to Know About California Easement Laws (Complete Guide)

The law of easements in California can be complicated and confusing. However, understanding what an easement is and how it is acquired is important before purchasing or selling any real estate, commercial or residential.  It could mean the difference between a painless transaction and an expensive mistake.

What is an Easement?

An easement is an interest in the land over which it is to be enjoyed.  This is different from a “license” which merely gives a personal privilege to go onto someone else’s land for a certain purpose, but does not operate to create any ownership, title, or estate in the property like an easement does.

There are many types of easements. But all easements include the right of use over the property of another, and the primary characteristic of all easements is that its burden falls upon the owner of the land.   Traditionally, the most important types of easements were rights of way and rights related to flowing waters.  There are, however, several other types of easements which may be impacting your real estate now.


Types of Easements in California

Easements are very common in real estate.  Each type is unique and has different requirements, making it essential to understand the laws that apply and how they affect your rights.

types of california easement laws

Usually an easement exits for the benefit of adjoining land. If so, it is called an easement appurtenant.  The land benefitting from the easement is called the dominant tenement. The land burdened by the easement is called the servient tenement.  If the easement is instead for the benefit of a specific individual, this is called an easement in gross.

Private or Public Easements

A private easement is one in which the enjoyment is restricted to one or a few individuals, while a public easement is one vested in the entire public to enjoy, such as an easement of passage on the public streets and highways, or of navigation on a stream.

Acquiring an Easement by Express Grant

Express grant easements are created in writing. Such an easement may arise when the owner of land intentionally transfers an interest in his land for use by another by contract, deed, or other written document signed by both the grantor and the grantee.  The document is generally recorded with the County Recorder’s Office with the deeds to both the dominant tenement and the servient tenement to make certain any claim to the easement becomes public knowledge.

Acquiring an Implied Easement

An implied easement is a type of easement which the law imposes by inferring the parties to a transaction intended that result, even though they did not express it.  It rests on the principle that where the owner of two or more adjacent lots sells a part of it, by implication he grants to the buyer all of those easements which are necessary for the reasonable use of the property sold, which at the time of the sale are used by the owner for the benefit of the part sold.

An implied easement will often arise when a parcel of real estate that is transferred becomes landlocked, and has no access to a main road without going onto a road running through someone else’s land.  In such a case, the owner of the landlocked parcel (the dominant tenement) may have an implied easement over the other person’s land (the servient tenement).  See also “Easements by Necessity”.

Appurtenant Easements

An easement that exists for the benefit of an adjoining parcel of land is called an appurtenant easement.  An appurtenant easement is an interest in land which “attaches” to the land burdened and to the land benefitted.   This type of easement is transferred along with the land as an incident to the land and is incapable of existence separate and apart from the particular land to which it is annexed.

Easement in Gross

An easement in gross is not appurtenant to any estate in land and does not belong to any person by virtue of ownership of estate in other land but is a mere personal interest in or right to use the land of another.  It is purely personal and usually ends with the death of the holder of the right.

Affirmative Easements

An affirmative easement gives to the owner of the dominant tenement the right to use the servient tenement, or to do some act thereon which would otherwise be unlawful. An affirmative easement requires the owner of the land burdened by the easement (the servient tenement) to permit something to be done on the land, for example to drive over it, or to discharge water onto it.

Negative Easements

A negative easement prohibits the owner of the land burdened by the easement (the servient tenement) from doing something otherwise lawful upon his land because it will affect the land benefitted by the easement (the dominant tenement). An example of violating a negative easement is the interruption of light and air from the land benefitted by the easement by building on the land burdened by the easement. 

Easement by Necessity

An easement by necessity is an easement that is indispensable to the enjoyment of the dominant estate.  For example, an easement by necessity may arise when the owner of vacant land sells a parcel that becomes completely shut off from access to any road, other than to a road on land retained by the seller.

Easement by Estoppel

An easement by estoppel is created when an owner voluntarily imposes an apparent easement on his property and another person, acting reasonably, believes that it is permanent and in reliance on that belief does something that he would not have otherwise done, or does not do something that he would have otherwise done.

Prescriptive Easements

An easement by prescription is a right to use another’s property which is not inconsistent with the owner’s rights and which is acquired by a use that is open and notorious, adverse and continuous, exclusive, and under a claim of right for the statutory period of five years.

It resembles acquiring title by adverse possession but differs to the extent that the adverse user acquires only an easement and not title.  Once the owner of the property gives the unwanted user permission to use his land, it stops the “adverse” use element necessary to acquire the prescriptive easement, if done before the five year period needed to obtain the easement.

Additional Questions About California Easement Laws?

Attorney Debra Grimaila has thirty-five (35) years of successfully representing real estate and business law clients in both litigation matters and in transactions.  Debra Grimaila, Esq.  is not only an experienced and successful attorney since 1986, she has been a California licensed real estate broker since 1989.

Call Attorney Grimaila today for any California easement law questions you have and get the expert legal advice you need before purchasing or selling real estate.




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About the Author

Debra Grimaila esq. specializes in corporate and real estate disputes, debt collections and more.

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