An easement is a right of use over the property of another for a specific purpose. Under California law, an easement may be established in the following ways:
An express easement is created by deed, contract, or other written instrument. Under California law, the use of the easement is determined by the contents of the document which created it. If the language of the document which created the easement is clear and unambiguous, courts are prohibited from considering extrinsic evidence in ascertaining the intention of the parties.
Under California law, an easement by prescription may be established upon a showing by the claimant that he has used the easement openly, notoriously, and continuously for a period of five years. The claimant's use of the easement must be hostile or adverse to the owner. If the owner has given the claimant permission to use the land, an easement by prescription will not be found.
An easement by implication arises based on the inferred intent of the parties to the transaction and the circumstances surrounding the transaction. Under California law, a claimant must prove two elements in easement by implication cases:
To satisfy the strict necessity requirement, the claimant must demonstrate that there is no other means of accessing the property. If there is another less convenient way to access the property, an easement by implication will not be found.
An easement by implication will continue as long as the necessity exists. However, if another means of ingress to and egress from the property becomes available, the easement will terminate.
An easement by necessity arises where the easement is essential to the grantee's beneficial use and enjoyment of the property conveyed to him by the grantor. An easement by necessity is an appurtenant easement. This means that it runs with the land and will continue to benefit the dominant tenement even if ownership of that property is transferred.
Among the most common easement issues are misuse by the easement holder and interference with the easement holder's use of the easement by the property owner. Easement disputes may also arise where improvements such as fences, walls, and driveways are erected which encroach on adjoining property.
If you are involved in a dispute over an easement, you should consult with an experienced real estate attorney. Your attorney can assist you by obtaining a title search and survey to ascertain the history of the property and the location of any improvements and easements on the property. Your attorney will advise you of your legal options and recommend the best course of action.