What is an easement? Two signs plus a legal document concerning easements or non-easementsEasements are referenced in home selling, particularly in the preliminary title report and the seller’s disclosures.

But what are they, exactly?

An easement gives a person or an entity the right to use or enter another’s property for a limited and specific reason. Easements are often granted, sometimes in exchange for something valuable (possibly cash). But there are other ways for easements to be created, too. We’ll review them at the end of this article.

See also: Where are the easements? Request a color coded easement map from your title company!

Sometimes, in older shopping centers, you may see a plaque or tile in the walkway stating that the owner gives permission. In the sign to the right, which is difficult to read, it says “Permission to pass is hereby granted at the option of the property owner.”

At other times, you’ll see signage indicating the exact opposite of a right to pass, announcing that a road or path is private and that it is not a right of way.

Often you do not see them at all, as with underground utility company’s right to access the lines.

Common easements

Utility easements are a good example of an entity with these rights. For example, nearly all homes in Silicon Valley get power from P, G, and E. At times there are underground utilities and at times there are above ground power lines, but either way, those lines belong to P,G, and E and that utility company has a right to access, service, and protect them. They may trim trees or bushes that risk interfering with the lines and causing a fire, for instance.

All or nearly all homes have easements for utilities, such as phone, cable, internet, power, water, and sewer, and we consider these to be normal. If there are high voltage power lines on or adjacent to one’s property, usually it’s not permitted to have permanent structures beneath them.

Other common rights of way are for ingress and egress (coming and going) as with shared driveways, or common area driveways and parking areas in home owner associations or on along private roads.

Less common means of access

Other types exist, and many of them are recorded with the county, but at times there are unrecorded. Home sellers should disclose them if they are aware that any exist.

Here are some of the less common ones that we’ve run into over the years.

  • air and light (often for properties with views so that they are not lost to overgrowth, or possibly for solar so that the trees don’t cause too much shade)
  • drainage (there may be a drainage ditch in hillside areas where water runs from one property to another and then out to a gutter somewhere
  • public access, such as trail access, beach access or similar
  • access to a landlocked parcel, such as a flag lot – that would be an easement of necessity
  • slope for erosion control
  • conservation easements for protected or threatened habitats, (especially near creeks, where adjacent home owners may not be able to have solid fences so that certain wildlife may move about
  • agricultural conservation easements
  • pool – I sold a home where one owner had a doughboy pool on the neighbor’s property because many decades ago a previous owner granted an easement for that use
  • open space, such as the Williamson Act or the Ridgeline Easement at the Lehigh Quarry in Cupertino

 

Types or categories of easements

  1. Express easements: most of the easements listed above would likely have been created because two parties agreed upon it expressly. It was granted, possibly for payment or “other consideration”.
  2. Implied: when people use another’s land, for example as a “cut through”, after 5 years it can become an implied easement. For this reason, property owners who permit access through their property to another may close off the access once a year so that the use is not continuous, and that land owner does not create a permanent right of way.
  3. Necessity: when a landlocked owner needs access to a road, this is considered a necessity and he or she may be granted a right of way to use a neighbor’s property to gain access to the road.
  4. Prescriptive: this is an open, hostile, and notorious, adverse use of another’s property that over 5 years causes the user to gain a permanent right to use the property. If a property owner has abandoned part of his or her land, a neighbor might begin to use it openly, maybe even fencing it in with their land, to effect a permanent right to use it after 5 years.

 

Related reading

What is title insurance, and who pays for it? (on this site)

What Is the Difference Between CID Ownership in a Condo, Townhouse or PUD?

Author

  • Mary Pope-Handy

    Silicon Valley Realtor, selling homes in Los Gatos, Saratoga, San Jose, Silicon Valley, and nearby since 1993. Prolific blogger with a network of sites.

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