Easements: When Someone Else Acquires the Right to Use Your Land

Easement disputes typically fall into the much broader category of adjoining landowner disputes. Adjoining owner disputes are some of the most common types of real property lawsuits. They can be bitter and expensive. This is because the parties frequently know each other, and the dispute is emotionally charged.


What is an Easement?

An easement is the legal right to use a portion of another’s land for a specific purpose. California law recognizes many types of easements. They can be broken down into two general categories:
(1) Express easements, which are written agreements that have been signed by the proper parties (often but not necessarily by prior owners) and have been recorded in the county land records; and
(2) “Prescriptive easements” where someone claims that they have been visibly using another’s land for a specific purpose without the owner’s consent for the period of time that legally results in the non-owner acquiring an easement. In California, the period of time is five years. The adverse use by the non-owner must have been clearly visible to the owner—and continuous without any breaks in time. There are other requirements for obtaining a prescriptive easement, but a visible and continuous adverse use for a specific purpose for a period of at least five years without the owner’s consent is the heart of a claim for a prescriptive easement.
Whether an easement is express or prescriptive, all easements are non-exclusive. This means the person who owns the easement cannot block or stop the owner from using the portion of its land where the easement is located.


Example of an Express Easement

If there is a power pole in the rear of your property, it is likely that that a check of the county land records will reveal that a utility company owns easement to enter a strip of land on your property to perform repairs on its power pole.


Example of a Prescriptive Easement

Say you own a small shopping center with a parking lot and the neighboring property owner also owns a business with a parking lot. There is no physical obstacle on your property that prevents people from driving across your parking lot to enter and leave the parking lot of the neighboring owner’s business. If the neighboring owner, or its customers, have been visibly entering your driveway and driving across your parking lot to go in and out of the neighboring owner’s parking lot, the neighboring owner has the right to sue to have the court issue a judgment granting a prescriptive easement. In this example, the use permitted by the prescriptive easement is a right of way for ingress and egress. Rights of way a common type of easement dispute.


The Effect of a Prescriptive Easement on the Value of Your Property

In the above example, the prescriptive easement could result in a large decline in the value of the owner’s property. Assume, for example, that you’re your shopping center is old and the current highest and best use of your property (and it’s sale value) is to demolish the existing building and build a new condominium, apartment, or mixed-use project that covers as much of your land as is allowed by city setback requirements. Further assume that the prescriptive easement right of way claimed by your neighboring owner is situated fifty feet deep into your parking lot. If the neighboring owner goes to court and acquires a prescriptive right of way easement, your land is essentially bisected by the neighbor’s right to use a defined right of way across your property. Since the value of your property is based on its potential for redeveloping it into a large residential or mixed-use project, the prescriptive easement would cause a decrease in the market value of your property.


Encroachments that Have the Functional Effect of Prescriptive Easements

A different yet functionally equivalent type of prescriptive easement arises in “encroachment cases.” Say you own a business and the rear of your property is a vacant strip of land that abuts your neighbor’s property and there is either no fence between the properties, or a survey reveals the boundary fence is in the wrong location and your vacant strip of land is behind the fence. If the neighbor builds a shed, lays concrete, or installs landscaping features on your land, those items (and the fence itself) technically “encroach” on your property. Encroachments can exist unnoticed for years; they are sometimes discovered only after an owner (or buyer) obtains a survey as part of wanting to do remodel work or a redevelopment construction project.

You can sue the neighbor to remove the encroachments. However, a common response is that the neighbor counter-sues you, claiming its encroachments have been in place for more than five years and it has therefore acquired an easement on your property. Technically, this type of easement is called an “equitable easement,” but as a practical matter it has the same effect as a prescriptive easement.

In equitable easement claims arising from encroachments, California law requires courts to “balance the equities.” Courts consider various factors, such as the age of the encroachments, the cost and difficulty of moving them, and several other factors. While courts have ordered the removal of encroachments, there have been situations where after “balancing the equities,” courts have granted encroaches an equitable easement. Some courts have granted equitable easements without requiring the encroaches to pay anything, while other courts have conditioned the grant of an equitable easement on the encroaches paying the owner the fair market value of the land on which the encroachments are situated. The “balancing the equities” test used by courts is entirely driven by the factual circumstances of the particular case. The reported appellate opinions in California that govern encroachments and equitable easements create murky waters and require a careful case-by-case analysis to properly advise clients on the best course of action.

Solutions to Easement Disputes

The best solution is to never allow another person to acquire a prescriptive easement. This means keeping an eye out for neighbors adversely using your land no matter how benign it seems. It does not matter if an owner was unaware of the adverse use, California law assumes owners are on notice of all visible features and uses of their property. To cut off the possibility of a prescriptive easement, an owner aware of an adverse use should put the user on written notice before the five-year prescriptive period runs that the user is trespassing, or negotiate a written agreement making the use consensual and subject to revocation (which legally transform the use into a temporary “license,” as opposed to a prescriptive easement that permanently becomes part of the legal title to your land and is binding not only on you, but also on all future owners of your property).

Preventive solutions can include something as simple as posting signs. California law even allows embedding plaques into the surface of property that contain certain statutory words and cite a specific statute, which has the effect of cutting off any claim of prescriptive easement.

Even if someone acquires a prescriptive easement on your property, it is possible to negotiate an agreement for the removal or relocation of the easement. In one case, for example, we negotiated an agreement that provided for the relocation of a prescriptive easement in a way that would permit the future redevelopment of the property burdened with the easement.


Our Experience

Our firm has years of experience handling all types of easement litigation. We also have years of experience negotiating and drafting agreements negotiating and drafting agreements that create, terminate, or modify easements and license rights to use another’s land. Feel free to contact us to discuss your situation.