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Easements are rights to use land. A typical easement would be an easement for a right of way. This would allow the owner of some other land to cross over the owner’s land. This right to use is an easement.
One way to look at an easement is to think about land title being broken into ownership and the right to use the land. One type of right to use the land is an easement and that use would typically go on forever. Another type of use would be a license or lease which are for a shorter duration.
There are easements that are attached to adjoining land. These easements are usually “easements appurtenant”. An easement that is not attached to specific land and is owned by a person is called an “easement in gross”. Easements can also be affirmative or negative. An affirmative easement would be an easement for utilities or a right of way. A negative easement would be an easement that requires an owner not to block someone’s view.
Easements are usually created expressly in a reservation or a deed. Some easements are implied meaning that they are not in writing, but they are an easement nonetheless. For example, if the owner of land divides the land in two parcels and sells the back parcel, the back parcel would have an implied easement across the front to get to a road for access.
Easements can also be created by prescription. Prescriptive easements are easements that a person can obtain through adverse use over time. If a person crosses over someone’s land for over five years in California, their right may ripen into an easement. This is called a prescriptive easement. To obtain a prescriptive easement you must prove that the use was actual, hostile, open and notorious, exclusive, and continuous for a period of five years. You do not have to pay taxes to get a prescriptive easement.
Disputes regarding easements are usually over the location of the easement on another’s land or the scope. An example would be a utility easement for water and sewer to be allowed for a new optical cable. Neighbors often fight over easements regarding a shared driveway. Another common dispute is over the maintenance of easements.
Early mediated resolutions are best. Our firm can assist in negotiating a resolution or can fight in court or in arbitration. Call us to schedule a consultation: 925-322-6902.
David M. Sternberg, Attorney-at-Law
319 Lennon Lane Suite A
Walnut Creek, CA 94598