What Is An Easement?
- either allows or limits a specific use(s) on a property and
- either covers a specified area on the property or covers the entire property and
- either benefits an adjoining property or benefits a specified person, several persons, partnership, firm, corporation, or public entity and
- restricts the relationship between the benefactor and the property owner.
Easements may be:
- Public or Private
- Personal or Commercial
- Expressed or Implied (not written)
- Below-Surface, Surface, or Above-Surface
- Affirmative or Negative (restricted use)
- Attached to the land or Held by an individual(s)
- Dominant (beneficiary) or Servient (benefactor)
- Fixed (dimensioned) or Floating (encumbers the whole property)
- Appurtenant (continues with ownership change) or In Gross (expires)
- Preserved by a court order (unwritten) or Abandoned by a court order (unused).
- Granted, Reserved, or Dedicated either with or without Valuable Consideration (monetary transfer).
and may have:
- Present or Future interests
- Perpetual or Limited duration
- Precedent or Subsequent conditions
What Are Easements Used For?
Development easements have three common uses:
- affirmative – Access Easement and Build Easement
- negative – No-Build Easement.
These uses are often combined in an easement, such as granting driveway access to a landlocked rear parcel and including a no-build restriction from the surface to 10 feet above the ground.
Access Easements are commonly used in circumstances such as private roads and common driveways, fire and equestrian trails, and utility maintenance, and may also be used in other circumstances such as widening the adjoining public right-of-way (in lieu of dedicating the land). Private easements and most public easements (e.g., utility maintenance, emergency responder entry) can have their use controlled by the servient tenement (e.g., locked gate with a Knox-Box®). Public access easements, however, must allow unrestricted use 24-7-365.
Build Easements are commonly used in circumstances such as curing non-temporary intrusions over a property line (e.g., neighboring roof eaves and foundations). No-Build Easements are commonly used in circumstances such as assuring a minimum fire-separation distance from a building on an adjoining property, assuring excavation access to buried utilities, or preserving parking, sunlight and air access, landscaping, or open-space.
Jurisdictions typically follow standardized easement protocols, such as:
- not enforcing private easement
- not allowing private easements coterminous with public easements
- transferring routine maintenance obligations for public easements to the servient tenement
- reserving exclusive use and occupancy of public easements unless an encroachment is granted
- on occasion, avoiding public easements altogether and requiring developers to arrange connections to public utilities and access for emergency responders, etc. directly from the public right-of-way.
What Is An Encroachment?
An encroachment is a term which is commonly used to distinguish the private use of a portion of publicly owned property, public right-of-way, or a public easement. Typical types of encroachments are:
- surface – café seating, hardscaping over utility easements, etc.
- below-surface – foundations, below-sidewalk basements, etc.
- above-surface – balconies, retaining walls, projecting wall signs, etc.
Encroachments are discretionary, not ministerial. Jurisdictions are not required to grant them because all encroachments inhibit the public’s unrestricted use of the property in some fashion. In general, however, jurisdictions do not require encroachments for:
- connections to utility mains (e.g., sewer/ water/ gas / electricity) because the hook-ups are required by municipal ordinance (non-discretionary)
- utility mains because the California Public Utilities Code exempts their installation in the public right-of-way (jurisdictions only control the location of an installation).
Encroachments have prescriptive conditions which are intended to shield the municipal corporation from:
- maintenance of the encroachment
- costs for removing the encroachment and restoring public property
- liability for damage and injury related to the encroachment and attorney costs for litigation
- reversion to the dominant tenement of the public’s control over or ownership of the encroached area
- damage claims by the dominant tenement from below-surface hazards and contaminants or insufficient public maintenance of the area adjoining the encroachment
Jurisdictions typically charge a processing fee for granting encroachments and require bonds and insurance. Jurisdictions may also charge a “leasing” fee for commercial use of the encroached area. While jurisdictions typically reserve the right to revoke an encroachment at any time and for any reason without compensation to the encroachment holder or an assignee (e.g., relocating a retaining wall for a street widening), the practical aspects of political discussion and equity may interject “materiality” into the appeal process (i.e., balancing the impacts on the dominant and servient tenements). Before granting encroachments, jurisdictions should review the variety of factors that inherently accompany future changes in status and their potential impacts on the dominant and servient interests.
The following statutes have potentially important considerations for easements:
- Lateral and Subjacent Support (Civil Code 832)
When shoring for excavations adjacent to neighboring buildings is “tied-back” under the adjoining property, an easement may be considered if the buried supports are not subsequently removed.
- Permanent Access (Civil Code 813/ 1008)
Property owners may post a sign on their property and record a notification with the County Recorder to limit exposure to Prescriptive easements.
- Utility Service (Civil Code 1001)
A property owner may acquire a contested utility easement crossing an adjoining property under special circumstances.
- Easement Beneficiary and Benefactor (Civil Code 804/ 805/ 811)
There are ownership restrictions for creating an easement and avoiding its extinguishment.
- Additional Types of Easements (Civil Code 801/ 801.5/ 802)
1. Always consult experienced professional advisers, including title insurance underwriters, for analysis of the terms and conditions in an easement.
2. Always consider including conditions in an easement which limit the time duration and transferability of an easement and clearly set forth the rights, covenants, restrictions, assignments, and obligations of the dominant and servient interests, and terms for revision and termination.
3. Remember that easements are discretionary, have intrinsic value for the dominant tenement, and have intrinsic disvalue for the servient tenement.
4. Remember that purchasing and selling a portion of the property may be a viable alternative to obtaining and granting an easement.
5. Recording an easement on the dominant and servient tenements is an important consideration.