An easement is a right to make limited use of property belonging to another. Main St. Plaza v Cartwright & Main, LLC (2011) 194 CA4th 1044, 1053. For examples of these uses, see CC §801 (servitudes attached to land), §801.5 (solar easement), §802 (servitudes not attached to land), §§815–816 (conservation easement), and §§816.50–816.66 (greenway easements). Easements are nonpossessory rights that authorize the easement holder to enter and use land in the possession of another and obligate the possessor not to interfere unreasonably with the use authorized by the easement. 194 CA4th at 1053.

The property that is subject to the easement is the “burdened” or “servient” property or “servient tenement.” If the easement benefits adjacent or nearby property, the adjacent or nearby property is the “dominant tenement.” CC §803. Wright v Best (1942) 19 C2d 368, 381; City of Hayward v Mohr (1958) 160 CA2d 427, 432.

An easement is a nonpossessory property right that allows one entity to use another person’s property for a specific use. Once an easement is granted, it becomes the legal right of the easement holder to have access to the property for a specific purpose and period of time as defined by state law.

In easement agreements or situations, parties are referred to as either the dominant estate, which is the one benefitting from the easement, or the servient estate, which is the one who must give up a portion of their land to comply with the easement terms. Easements may be placed on a piece of property to access another piece of property or to allow utility companies the ability to work on a property.

Easements are either appurtenant or in gross.

10 Types of Easements

There are different types of easements. The details of each depend on the specifics of the easement, how it was created and if there is a written agreement. Following is a discussion of how different easements are created and categorized, many of which may overlap:

Easements created by Agreement also called Affirmative Easements. Agreements that provide an easement holder with  permissions to make use of another’s piece of land are called affirmative easements. Examples would be an access easement across someone’s property to get to your own, or one granting a person permission to fish in their neighbor’s lake.

Public easements: Public easements allow the residents of an area to use a limited section of a person’s property such as right-of-way access to main roads or a public beach that would be otherwise inaccessible. Property or homeowners may not obstruct the public’s fair access to non-privately-owned areas under the terms of a public easement.

Private easements: Private easement agreements are negotiated between two private property owners to mitigate personal property concerns, such as running sewer lines under their neighbor’s property or installing solar panels that may obstruct another person’s view.

Negative easements: Negative easements limit a property owner’s use of their own land for the benefit of the easement holder. For instance, an easement may prevent a landowner from building structures that obstruct their neighbors’ view or block an electric company’s powerlines or even sunlight, or a view of the mountains, for example.

Easements in gross: Easements in gross are rights that benefit the individual or company holding the easement and not the property itself.

This type of easement is non-transferable and is only valid as long as the property owner or easement holder is alive.

A utility easement is an example of an easement in gross. Utility companies may need access to private land to install, repair, or maintain public utility structures, which is the right of the utility company or customer rather than the land itself.

Easement appurtenant: An easement appurtenant is a right that is attached to a specific piece of property. Landowners have a legal right to ingress and egress their own property which cannot be inhibited by another entity. An example would be a driveway easement in which Neighbor A’s home is located behind Neighbor B’s property, making Neighbor B’s driveway the only means of access that Neighbor A has to their legally owned home. The easement appurtenant would stipulate that Neighbor A has permission to use Neighbor B’s driveway to access their home, which would also extend to any new owners who purchase Neighbor A’s property after them because the easement applies to the property, not the owners.

Express easements: Express easements are written agreements between a landowner and an individual seeking to use part of their land. Specific rights depend on the terms of the agreement, and the property owner can use their own land as they see fit as long as it does not interfere with the granted rights of the dominant estate.

Implied easements: Implied easements imply land use rights for particular entities. For instance, stormwater drain maintenance companies have implied access to the designated piece of land for whatever upkeep and repairs are necessary. Implied easements can also apply to property that has been changed or divided. Despite the altered condition of the property, the easement holder’s use remains the same through implied, existing use.

Easements by necessity: Easements by necessity are granted in situations like private land blocking the only access to a public road or area. These easements are granted out of necessity rather than prior use and are often provided through a court order.

Prescriptive easements: Prescriptive easements can be either in gross or appurtenant, but they typically arise based on incidence rather than an official agreement. These easements are often referred to as adverse possession, and often happen when one person begins using another person’s property frequently for a particular purpose without permission. If the property owner doesn’t object to the person’s use of their property, they are providing consent to that use.

How to Check if a Property Includes an Easement

You can do a title search on your property or check a property deed to see if your property has an easement on it. Additionally, you can call your utility companies to check if they have any easements on your property. Certain easements may be a matter of public record, but other easements—such as implied easements—may not have documentation.

How an Easement By Necessity Arises

Easements are rights that one party has to another party’s property arising by various means.

In California, there are numerous types of easements. One of these is an easement by necessity, which grants a person with landlocked property the right to use another individual’s property to gain access to his own.

To have it declared a necessity that you have long-term rights to use another person’s property to access your own, your property must be completely landlocked. This does not mean that you have a way to access your property but you consider it inconvenient. When assessing all of the borders of your property, it must be found that there is no legally accessible route from any right-of-way or public roadway.

There is a second element that you must prove if you want a court to grant you an easement by necessity. According to California law, you must show that there was common ownership of the two properties at the time of conveyance. Otherwise, it can be deemed that there is no strict necessity.

You should also know that this type of easement can dissolve if the necessity disappears. This would occur if another means to access your property ever becomes available.