An easement is a non-possessory interest for the use of real property that belongs to another for some specific purpose.  The most common easement is for ingress and egress (road access to the property), but easements can also be obtained for utility lines, windmills, logging, hunting rights, and even scenic views.  Easements can be public (granted for public access to beaches or other public areas) or private (granted to a person for individual privileges.)  It is not a fee interest in the land, but it is a right to an ownership interest and has an inherent value (particularly if it runs with the land, i.e. is transferable to future owners.)  Indeed, easement rights are sometimes purchased for valuable consideration.

 There are several types of easements:

  •  Express easements, created by grant deed or contract, i.e., agreed to by the parties and in writing
  • Implied easements, arising from the inferred intent of the parties upon conveyance of title under cases of reasonable necessity
  • Equitable easements, granted for long-time use and improvement of land, continuance of which would cause little harm to the property owner and cessation of which would cause irreparable harm to the user
  • Prescriptive easements, based on continuous, open and observable use of the land for 5 years or more
  • Easements by necessity, created to allow otherwise practically impossible use and enjoyment use of property that is landlocked as a result of severance of parcels

 “Landlocked” means that the property is completed surrounded by land belonging to others, making it inaccessible to public streets, roads or highways.  As a result, the property is unproductive and relatively useless.  Landlocked parcels are typically created when a single owner subdivides a parcel, and then conveys an “interior” sub-parcel to another party.  They are more common in rural areas when large tracts of land are subdivided and sold, or when  the property is parceled for bequeathing to multiple heirs (much less common in modern times.)

 Now, there is no statute in California that requires that all properties, landlocked or otherwise, to have access to public streets, roads or highways; so in California the courts decide on easements purely based on the facts of the case.  All easements, except for express easements, are determined in a court of law.  Easements by necessity are relatively easy to determine – either the parcel is landlocked or it isn’t (“strict necessity”.)  But implied easements, prescriptive easements and equitable easements are a little trickier.

 On the basis of equitable easement, the court must determine if the easement was necessary at the time the one parcel was partitioned into two.  Is it a case of strict necessity, of reasonable necessity, or convenience? The court will consider, among other things, the existence, expense, and relative convenience, of constructing and maintaining alternate routes for the petitioning landowner. 

 Equitable easements are decided on the doctrine of “balancing conveniences” or “relative hardship.”  Would the granting of an easement cause more hardship/inconvenience on the owner of the parcel with the easement, than the hardship/inconvenience that would be caused on the owner of the landlocked parcel if the easement were not granted? 

 The three basic tests on which “balancing conveniences” or “relative hardship” are set forth can be found in Christensen v. Tucker (1952) 114 Cal. App. 2d 554, a case where the plaintiff sued for an injunction against defendant from using the easement: 

(1) The defendant must have clean hands; that is, the encroachment must not being a result of defendant’s negligence or willful act, and the defendant must not be responsible for the situation;

(2) The plaintiff must not suffer irreparable injury by the encroachment (except in cases where the rights of the public will be adversely affected); and

(3) The defendant must prove that the injunction against the encroachment would create a hardship to the defendant far greater that the continuance of the encroachment would create to the plaintiff.  When the defendant is unable to clearly prove his case, the injunction should be granted.  id, at pp. 562-563.

Another more recent decision in the Second Appellate District in the State of California granted an equitable easement in the absence of clear grounds for an implied easement or easement by necessity.  In Linthicum v. Butterfield 95 Cal. Rptr. 3d 583 (Ca. App. 2009), both parcels in question changed hands numerous times over the last 118 years.  The original owners had express easements for an access road over Parcel 1 in the form of special use permits obtained from the United States Government (the original owner), but the later owners continued to use the access road under the impression that the express easements remained.  Butterfield, defendant and owner of the landlocked Parcel 2 (as well as owners of other adjacent land-locked parcels) used and maintained the access road for decades. Linthicum, plaintiff and owner of Parcel 1 over which the access road crossed, purchased his Parcel 1 only in 2000, and sued for an injunction against Butterfield from using the access road.

 The courts of appeals applied the tests set forth in Christensen v. Tucker  and upheld the decision of the trial court against the injunction and quieted title on the easement for the access road:  

First, the court found that the defendants were innocent in the encroachment.  Defendant landowners may have been negligent in their failure to obtain/renew special use permits for using the road,  but the court decided that because of the existence of prior special use permits and the many decades of use of the road, defendant was not negligent or wrongful in the continued use of the road without formal permits  Further, plaintiff purchased Parcel 1 with full knowledge of the existence and continued use of the access road, and it was only his suit for the injunction that actually created the dispute.   

Second, based on expert testimony and a site inspection, it was shown that plaintiffs had no less than nine suitable building sites on Parcel 2, none of which would be negatively impacted by the use of the present access road.  So, there would be little or no hardship or inconvenience to plaintiff if the access road remained in use.

Third, the court found that the construction of the only possible alternate access road for Lot 2, which would have required the removal of 40,000 cubic yards of earth and the construction of a massive 40-foot retaining wall, would create an onerous burden on defendants.  Additionally, there was serious doubt that the county would grant a permit for such a road.  Therefore, an injunction against the use of the access road by defendant would have created great hardship on the landlocked landowner. 

The moral of the story is, then, if you own (or are considering buying or selling) a property that either uses or is subject to the use by neighbors for any reason, you should confirm that the easement is an express easement documented either in the deed or the title report on the property.  Even if you have a written agreement signed by both parties, the agreement should be recorded on the title of the servient property.[1]  Without a signed, preferably recorded, agreement, then you are always at risk for a lawsuit for an injunction or for a quiet title action.  If you use an easement (or if your property is burdened by an easement) and you are not certain that is properly recorded with the county recorder, now is the time to consult with your attorney before an expensive lawsuit is filed against you.  


[1] The servient property is the land across which the easement crosses, has the timber, provides the view, is the hunting ground, etc.


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