In most counties and municipalities, portions of the land that you own must be given to someone else to use for anything from utility work to the creation of legal pathways. In this case, an easement is required, of which there are four different types that can be used with California properties. An easement is a right for an entity or person to use a portion of real estate that they don’t directly own for a very specific purpose.
If you are in the process of starting a development project and are looking to apply for a building permit, it’s important to understand that your permit and project may never go through if there’s an issue with the easements on the property. If there is an easement on your property, it’s essential that you don’t attempt to make changes to this area of your property. When applying for a building permit, your permit application will almost certainly be rejected if your building plans show that you are going to be making alterations to land that has been set aside for easements.
Many easements are walkways that allow the public to safely travel through the property without accessing the property owner’s private land. Easements are also commonly used for utility purposes, which can include everything from running cables to installing water pipes. These easements are a part of real estate because they are written directly into the property deed. If easements are kept off of the property deed, they will end following the death of the grantor, at a set expiration date, or when the property is sold. There are many different types of easements that a city can use. However, easements are usually the same across every city and county.
This article offers an extensive guide to four of the more primary types of easements that can be used in California.
What is an Easement?
An easement is a right that an entity or person has to use a portion of a property for a specific purpose. Keep in mind that the entity or individual who uses this easement doesn’t own the land in question. Easements are typically written into the property deed but can be left off in certain situations. When easements aren’t placed on a property deed, they will come to an end when the property has sold, when an expiration date has been reached, or when the grantor has passed away.
The use of the land that has been set aside for an easement is written into the easement agreement, which means that the land can’t be used for any other purpose. The majority of easements take the form of paths or roadways on the edge of a property that can be accessed by members of the public. While the land itself will continue to belong to the owner of the land, the surrounding community will also benefit from being able to more readily move throughout the neighborhood.
When looking specifically at the California Civil Code, the state has a basic framework for easements that’s detailed between sections 801-813. This framework provides a comprehensive look at easement guidelines that city officials and land owners should adhere to in California. If you decide to read the California Civil Code or want to learn more about easements, there are some terms that you should know that will allow you to better understand what easements are.
These terms include:
|Dominant tenement||This refers to the property that benefits from the easement in question|
|Servient tenement||This refers to the specific property that has been burdened by the easement, which is the property that the easement holder is able to use|
|Appurtenant easement||This is a type of easement that benefits the property holder, of which there are 18 separate types|
|Easement in gross||Benefits the easement holder but isn’t tied to a dominant tenement|
|Affirmative easement||Provides the easement holder with the ability to perform some kind of act on servient land, which could be anything from taking water from the land or crossing over the land|
|Negative easement||Provides the easement holder with the ability to keep the servient tenement from using the burdened property for a specific use|
There are many reasons to use an easement, which can include anything from conducting business on the easement to providing the public with access to a street. Understanding the different terms that are commonly used when talking about easements should make it easier for you to eventually submit your building permit without running into problems.
4 Types of Easements
1. Express Easements
An express easement is likely the most common type of easement that an individual or entity can obtain. This easement can be created via a grant or reservation. When an express easement is granted, this means that the land owner provides another entity with the ability to use their land for right of way purposes. When an express easement is reserved, this means that the land is sold from one individual to another. However, the original owner will reserve an easement for their benefit.
2. Implied Easement by Existing Use
An implied easement by existing use is a unique type of easement where the law will state that an easement was previously implied between two parties even when no written agreement can be found. The entity that believes they are able to use a portion of the land as an easement will need to provide proof that they were already able to use the land for a specific purpose.
3. Easement by Necessity
An easement by necessity is an easement that occurs when the use of the land is absolutely necessary. Unlike implied easements, this type of easement doesn’t require preexisting use of the land as an easement. If someone’s property is landlocked, they may need to use a portion of another property to get to the street.
4. Prescriptive Easement
A prescriptive easement is a type of easement that’s granted when someone continued to use a portion of another person’s land for a specific period of time. Even if the use of this land wasn’t permitted by the owner, a prescriptive easement may still be granted.
Can You Build on a Property or Utility Easement?
Even though many property owners believe that they are unable to build on a property or utility easement, it’s actually possible to do so in certain circumstances. Keep in mind that a utility easement is designed solely to provide a utility with the ability to use and access the area in order to lay gas, sewer, or water lines. Property easements are much broader and are typically beneficial to the public.
There are many different things that can be done on an property easement. If an entity obtains an easement in gross, they can use the land for burial purposes, as a right of way, for fishing, and for the right to pasture. Many easements provide the public with walkways that they can use to stay off the road. If you want to build on an easement, it’s important to understand that doing so can lead to issues down the road.
While it’s possible to build a fence on an easement, keep in mind that the utility company may take the fence down in order to use the easement. However, they will typically repair the fence as best as they can once their work is finished. You can also build pools and hot tubs on easements. If you use an above-ground pool, it can be removed when the easement needs to be used. However, installing an in-ground pool into the easement may be better for you since these pools cannot easily be removed. While trees and large types of vegetation should never be planted over an easement, it’s perfectly fine to plant grass and shrubs around an easement.
Termination of Easements
In general, easements are designed to continue indefinitely. However, there are four different methods that can be used to terminate easements, which include an express agreement, abandonment, a merger, and ending by necessity. An express agreement occurs when the easement owner and easement holder agree to terminate the easement. Abandonment of an easement occurs when the holder of the easement takes action to stop using the easement permanently. Not using the easement for a short period of time doesn’t exactly qualify as abandonment. As for a merger, an easement is terminated in the event that the dominant estate owner obtains the title of the servient estate. Lastly, ending by necessity occurs when the easement is deemed to no longer be necessary.
While landowners are typically required to navigate numerous hurdles throughout the property development process, understanding what easements are and the role that they play in California properties should help you minimize the issues that occur throughout development. It should also give you the means to create building plans that the LADBS will accept when you send in your building permit application.
Jason Somers, President & Founder of Crest Real Estate
With over 15 years of professional experience in the Los Angeles luxury real estate market, Jason Somers has the background, judgement and track record to provide an unparalleled level of real estate services. His widespread knowledge helps clients identify and acquire income producing properties and value-ad development opportunities.