When you buy real estate, it’s usually expected that no one else can enter your property without your permission. Therefore, learning that another party may have the right to come on to part of your land can come as quite a shock. The entering party may have an “access easement” that allows them to cross your property. When the easement holder is a neighbor, they may use this access easement regularly. To avoid future issues and misunderstandings, it’s essential to clarify what the easement actually grants. A good place to begin is by asking: 1) does my neighbor have an access easement on my land, and 2) what rights does the access easement grant?
California Easements
An easement is a right that one party has to go onto another’s land for a particular purpose. Easements do not convey property ownership interests. They merely allow the easement holder to enter another’s property for a limited purpose. Matters can get complicated, however, when the property owner interferes with the easement.
Easements typically “run” or transfer with the property when it changes ownership unless something happens to end the easement.
In California, easements can be created many ways: by written agreement, by necessity, implication, and by prescription.
- Express easements are easements that are created through a deed or other document that describes the use. The document’s terms determine an express easement’s scope.
- Easements by necessity arise when one owner needs to cross through another’s parcel to come and go from their own. This usually occurs because the easement holder is landlocked. Easements by necessity typically happen because the tracts of land were owned by one party, which allowed access to the main road. For example, a parcel is divided by Owner A, and then Owner A sells a tract to Owner B that does not provide access to the main road. Suppose Owner B does not have access to the road without crossing Owner A’s parcel. In that case, the easement is created by the necessity of Owner B needing to cross Owner A’s neighboring tract to get to the main road.
- Implied easements arise when there has been preexisting use of the land in a certain way. For instance, Mrs. Johnson owes a tract of land with a public roadway that crosses its length, and later sells part of the land to Mr. Thompson. Mr. Thompson cannot access the public road unless he crosses Mrs. Johnson’s land or builds a new road. An easement could be implied if a court interprets that the parties meant for Mr. Thompson to be able to continue using Mrs. Johnson’s land when she divided the property. This type of easement would not have to be in writing.
- Prescriptive easements can occur when another uses property without the owner’s permission adversely, notoriously, openly, and continuously, and without permission for a five-year-period. The use would need to have been in a way the landowner knew or should have reasonably been aware of and continuous for five years.
Easement Holders are Not Trespassers
In general, when one party goes onto another party’s land without permission, the act is considered illegal trespass. However, trespass requires that the invading party interfere with an owner’s exclusive possessory rights to the land. When the “trespassing party” has an easement, the owner cannot claim the act is illegal or interferes with their exclusive possessory rights to the land. Although the easement holder doesn’t own the land, they have the right to come onto it for a specific purpose. Therefore, when someone is using an easement. The owner’s possessory rights are not exclusive, and the easement holder is not trespassing.
A property owner is not defenseless, however. If a party with an easement comes onto their property and exceeds their rights or causes damage, the owner may have remedies under the law. In other words, having certain types of easements is not a license for the easement holder to come onto another’s property and do anything they want without consequence. By the same token, a property owner can’t deliberately interfere with an easement holder’s rights to use the easement.
Does My Neighbor Have an Easement?
Depending on the type of access easement your neighbor has, you may be able to answer the question of whether your neighbor has an easement. An express easement will be in writing somewhere, such as a deed. An easement by necessity or implication may be evident from the land’s history and the tract’s proximity to the public roadway. An easement by prescription can be more complicated as it requires that the easement holder establish their right. As far as determining the scope or extent of an easement, the easement’s terms may be stated in writing or evident from the easement itself. The best way to determine if your neighbor has an easement to your property is by contacting a California real estate attorney. Your lawyer can review your access easement issue with you and help you better understand your property rights.
Contact the Law Office of Raffy Boulgourjian
Attorney Raffy Boulgourjian is a California real estate attorney with over twenty years of experience representing clients in residential and commercial real estate cases. He has the knowledge and expertise to protect your real estate interests. Contact Mr. Boulgourjian today to schedule a free legal consultation to discuss your California real estate needs.