- Juliet Sussman
How to Create an Easement
Updated: Oct 27, 2022
An easement is an interest in real property that entitles its owner to limited use or enjoyment of land in the possession of another. An easement may be appurtenant or in gross.
An easement is appurtenant to a tract or parcel when it is created to and does in fact benefit that tract or parcel or when it is attached to it. Civil Code § 801 lists various appurtenant easements: right to pasture, fishing, taking game, right of way, water, flooding land, receipt of sunlight, etc. That list is not exclusive.
An easement is in gross when it is not attached to any particular land but belongs to a person individually.
An easement can be created in any one of the following ways:
EXPRESS CONVEYANCE
MUST BE IN WRITING. The most commonly used method for the creation of easements is the express conveyance. Subject to a few exceptions, an easement may be created only by a conveyance or other instrument in writing, subscribed by the party (or by the duly authorized agent of the party) creating it. WRITING REQUIREMENT EXCEPTIONS. Doctrines of part performance and estoppel. For example, it has been held that an executed oral agreement between the creator of an easement and a person seeking to enforce rights in the easement is sufficient to vest the latter with rights enforceable in equity. Applying the familiar rule that equity regards as done that which ought to be done, courts will protect an enforceable equitable title to an easement as fully as an enforceable legal title
IMPLIED CONVEYANCE
PERSON MUST HAVE OWNED BOTH PARCELS. If land in one ownership is divided by conveyance into separately owned parts, the grantee will acquire an easement to use his or her part of the property in the same manner and to the same extent as that part was “obviously and permanently” used by the grantor before the transfer.
In California, the successful establishment of an easement by implied conveyance generally depends on three elements. These elements have been stated as follows:
(A) There must be a separation of title;
(B) Before the separation, the use that gives rise to the easement must have been so long continued and obvious as to show that it was intended to be permanent; and
(C) The easement must be reasonably necessary to the beneficial enjoyment of the land granted.
EXPRESS RESERVATION
RESERVED IN A DEED. An easement may be created by express reservation in a deed or other instrument. A “reservation” is a clause in an instrument of transfer whereby the grantor reserves to himself or herself some right, interest, or profit in the estate granted.
IMPLIED RESERVATION
SIMILAR TO IMPLIED EASEMENT. An easement by implied reservation will typically arise when land in single ownership is divided, with one part being conveyed away and another part being retained by the grantor. These are analogous to easements that arise from implied conveyances and, similar to implied conveyance easements, some courts have been more reluctant to enforce them.
ELEMENTS. An enforceable easement by implied reservation requires:
(A) The title to property under single ownership was separated;
(B) Before the separation, the use that gives rise to the claimed easement must have been so long continued and obvious as to show that it was intended to be permanent; and
(C) The easement is reasonably necessary to the beneficial enjoyment of the land granted.
BY CONTRACT
IN WRITING. An agreement for the creation of an easement has the effect of a grant only when the contract is executed. As a result, the contract does not create the easement, instead it can be used to either sue for specific performance to require that the easement be created, or be used a defense in a partition action.
BY PRESCRIPTION
ADVERSE POSSESSION. Must show:
(1) Individual used the property over which the easement is claimed for at least five years; and
(2) That their use has, during all of that time, been open, notorious, adverse, continuous, and uninterrupted.
NO TAX REQUIREMENT. When there is no evidence that an easement was assessed separately, the prescriptive claimant need not prove payment of taxes.
BY NECESSITY
An “easement by necessity” arises when ownership of land is divided in such a way as to create a landlocked parcel.
REQUIREMENTS.
(A) There must be “strict” necessity for the easement; and
(B) The dominant and servient tenements must have been under common ownership when the land was divided and the easement created.
“Strict necessity” exists when the claimed easement furnishes the only possible means by which access may be had to the claimant’s property. The fact that a parcel is difficult to develop does not mean that there is not necessity for access. The necessity is not “strict” if there is any alternate route for access.
CONVEYANCE OF LESS THAN FULL TITLE
A property owner who conveys less than full title may validly create easements in his or her favor on the property.