Knowing Whether an Easement Exists on Your Property

Whether you own property as a residential or business owner, it can come as an unpleasant surprise when you suddenly see a neighbor or even a stranger on your property, using it as their own. Perhaps they are fishing in a boat on your lake, using your driveway to haul trash, or even putting up power lines across your lawn.

When you go out to confront the person and even threaten to call the police for trespassing, the response might be that that person or the entity they represent has what is called an easement on your property. Essentially, an easement is a limited property interest in your land by another party to use that land for some particular purpose.

Ideally you would have known about this easement before you took possession, and not knowing might be the fault of the seller (for which you could potentially take legal action) or simply due to not understanding the real estate contract.

But the first step will be to determine whether an easement actually exists. You should speak with a real estate attorney to get an informed perspective on your particular situation to determine whether the easement is legitimate or not – and there are at least 11 different ways for an easement to come into place in California – but here are the four basic ways an easement might have been created on your property.

An Express Easement

An express easement is one that was specifically granted to the holder of the easement by the owner of your property, presumably a former owner if you do not recall expressly giving someone else the right to use your property.

This does not mean that a one-time orally-given permission to let your neighbor ride his tractor across your property means he has an easement. Instead the grant of the easement must be in writing to be enforceable.

An Implied Easement

Also called “an implied easement by existing use,” this type of easement only comes into existence when a property owner at one time owned undivided property and then later divided that property into multiple parcels, which could include the property you have now and the property owned by the person claiming to have the easement.

In addition, there is the added requirement that the use of the easement have been in use since the division of the property. For example, if a previous owner sold part of his land including a lake to another person, and continued to use the lake to dock his boat after the sale, there might be an implied easement to keep using the lake in that manner.

An Easement by Necessity

An easement by necessity does not require that both properties have once been under common ownership, but there is the higher bar that the presumptive easement holder must have a necessity in using the easement. This is commonly seen where access to a road from one property is only available by driving across the other property.

A Prescriptive Easement

A prescriptive easement is similar to the concept of adverse possession. In California, a prescriptive easement can be created when one person uses another person’s property for some limited use (e.g. walking across it to get to the beach) in a relatively continuous manner for at least five years when the property owner either knew of the use or reasonably should have known of the use.

Contact the Real Estate Litigation Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. We provide counsel and representation to landlords, developers, commercial tenants, and investors alike. Contact Wagenseller Law Firm today to schedule a consultation to discuss your real estate matter.