Easing Into Easements: The Basics

Easements are non-possessory interests in real property known in the law as “servitudes.”  In other words, an easement owner does not own the property itself. Easements allow one party to use the land of another party for a specific purpose. Also referred to as a “restricted right,” this is the right to use another’s property for a defined purpose. This “restricted right” is less than full ownership. 

Essentially, one party owns and possesses the land. The other party has a non-possessory right to use the land, as defined by the easement. It can be surprising to find out that someone else is permitted to be on your property for a specific purpose when you purchase real estate. Before investing in California real estate,be sure to check the property’s title history carefully for easements;  a real estate attorney can help.

The property subject to the easement is known as the “burdened” or “servient” parcel.  The property that uses the easement is known as the “benefited” or “dominant” parcel.  The California Civil Code lists eighteen explicit servitudes.  The courts have recognized additional easements. In California, easements can be established in four different ways:

1. Express Easements

An express easement is one where the landowner signs a written document allowing another party to use the owner’s property. Deeds, contracts, and other written documents can accomplish this. These can be “affirmative” or “negative,” depending on the nature of the agreement. An affirmative easement, for instance, allows the easement holder access to part of another’s property for a specific purpose (like accessing the public beach). A negative easement is a legally binding promise made to the easement holder not to do something with a particular parcel of land, such as building a structure that would block the view of a neighbor, or the view of a billboard from an adjacent street or interstate highway.

2. Implied Easements

An implied easement occurs when a property is divided and the circumstances indicate an intention for the owner of one part of the divided property to continue to use the other part.  For example:  a property may have frontage on the street.  If it is divided in a way that blocks one part from that access, the law will (generally) imply the right for the owner of the rear parcel to cross the front parcel to reach the street.

An implied easement does not require a written agreement. It is only necessary that the two parcels were once a single parcel and the facts surrounding the division of the property suggest that the owner of the benefited property would continue to have the right to continue to use the burdened property for a specific purpose.

3. Easements of Necessity

Unlike an implied easement, the burdened and benefited properties need not have been a single property to create an easement of necessity.  The most common easement of necessity will be the right to cross over another’s land (“right-of-way”).  If a parcel is landlocked, and if there is no other way to reach a road, the courts might find a right-of-way across the burdened property.

We said “might,” not “will.”  As with so many other areas of law, outcomes are uncertain.  If you are considering the purchase of land that requires the use of an adjacent parcel, it is better to rely upon an express easement than to hope that a judge will recognize an easement of necessity.

4. Prescriptive Easements

This occurs when a person has openly, notoriously, and continuously used the easement for at least five years. The person using the easement must be doing so without the landowner’s permission. An easement by prescription does not need to be in writing in order to be valid. For example, prescriptive easements can be created when people use someone’s land for the required period of time, such as for a hiking trail or shortcut.

A prescriptive easement cannot be claimed for the exclusive use of another’s land.  You cannot fence off a portion of your neighbor’s property and claim a prescriptive easement.  You would have to satisfy the requirements for adverse possession, which are more stringent.


Some easements may not show up on a title report.  You must physically inspect land before you buy it.  The courts will impute to you the knowledge you would learn by inspecting property, whether or not you actually inspect it.  Make sure the property you are buying is not burdened by someone else’s right to use it.  If you need to use someone else’s property, it’s best to have an express right to use it, in writing.

Our Experienced Lawyers Can Help You 

In the end, it is important to seek legal advice if you purchased property with easements attached to it or if you believe you have a right to easements on other properties. Easements are legal constructs. If you have questions about easements, you may find it helpful to consult a real estate attorney in California. Schedule a Get Acquainted Call or Initial Case Evaluation with Hamlin | Cody attorneys.