EASEMENTS ARE TRICKY BUSINESS FOR UNWARY PROPERTY OWNERS
Derived from the Old French aisement, ‘convenience or accommodation’
Don’t Block that Easement!
Often the first time an easement becomes an issue for a property owner is when he finds it blocked in some way. Have you always used the narrow driveway that runs alongside your neighbor’s property to get to and from your own home? It’s likely what you have is an easement over a portion of his property. Looked at your deed lately? Occasionally, the owner of the property over which the easement runs will encroach into it, sometimes in all innocence. If the easement isn’t regularly used, or only a portion of it is used, the property owner may think it has been abandoned or isn’t needed.
Most easements homeowners deal with have to do with getting into and out of landlocked property. Say you buy a piece of land on the side of a beautiful hill in somewhere like Nicasio, but there’s no access road to the property. How do you get to the land? Where do you build your road? These are questions you need answers to before planning your dream house. Besides the cost of building a hillside driveway, you will probably need to obtain an easement across the downhill neighbor’s property. This kind of easement is often created at the time of subdivision, but if you are buying land that is not part of an existing subdivision, there may not be an easement in place.
You need to find out if the neighbor will grant you as easement for ingress and egress and if so, what will it cost you?
Often easements are reserved from property carved out of a larger lot, to allow the original owner or those coming after him access to their land. Make sure you know if land you buy has an easement on it for back lot neighbors.
No one may unreasonably interfere with the purpose for which an easement has been created. That means you can’t put up a locked gate across the driveway your neighbor uses to access his home. Nor can you build a fence so far into the easement that it blocks the way or creates a hazard.
The question that faces courts when these disputes escalate into litigation is what is reasonable? Is it reasonable to put a fence two feet into the easement but not three? Is an easily opened gate across the drive ok, if it serves the function of keeping livestock in?
Often these disputes arise because no one knows exactly where the easement is located. Or it appears to have been abandoned because it’s rarely used or not used for its intended purpose. A new road may now provide access and the old easement may no longer be needed.
Is an Easement Forever?
Some easements are hard to get rid of. If you notice there’s one in your deed, and no one’s been using it for years, don’t stop there. If you have questions about whether it’s ok to block off a long overgrown roadway, or move your garden into the easement way, you better consult an attorney first. If the neighbor objects, you could find yourself in court while a judge and jury sort out the property issues.
Even if the easement hasn’t been used for years, it doesn’t automatically revert to your use. Even if they start using it for another purpose altogether, so long as that purpose is not result in “a physical change that permanently and materially prevented [the easement holder] from using the easement or made his use of the easement severely burdensome….” The easement will not be extinguished. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754.) In fact, even after twenty years of disuse, the easement holder may be able to reclaim the easement by filing a “late notice of intent to preserve easement” pursuant to California Civil Code section 887.070.
Overburdening the Easement
An easement may have been created for one use and now be used for another. For instance, what was once a wagon trail used to alfalfa to a head of cattle that is now long gone may now see several hundred car trips per day as new owners of the now subdivided land pass through your property.
Courts will evaluate the issue of whether a change in use of an easement is consistent with the purpose for which it was created. Does the use by the subdivision homeowners comport with the earlier use by the farmer to carry food to his cattle? If the change in use is one of degree instead of kind, the easement will be allowed to continue.
This change “includes normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden …. (Wall v. Rudolph (1961) 198 Cal.App.2d 684.) In the case of a farm being subdivided, the court will look to the reasonableness and forseeability of the new use.
If the new owners continue to use the easement for long enough, they may acquire a right to continue using it through prescription, or it may even be seen as a public right of way.
Often jurisdictions require conservation easements when granting a conditional use permit for agricultural land. These can either be public or private easements. Lucas Film property was created out of historic dairy ranches and contains many thousands of acres of agricultural land preserved in private easements as well as miles of public access trails as part of its deal with the county for development on the north side of Lucas Valley Road, just west of Big Rock.
The Marin Agricultural land Trust acquires easements from West Marin farmers to ensure the land stays in agriculture. To date more than 32,000 acres or one quarter of all Marin’s agricultural land has been protected in this way.
The Marin County Open Space District holds easements more than another 2500 acres.
If you have questions about an easement of your own that your deed description or parcel map can’t answer, consider consulting a land use or real estate attorney for help unraveling the problem.
Dotty E. LeMieux is a land use, tree and property law attorney in Mill Valley and can be reached at firstname.lastname@example.org. A version of this story appeared in the Marinscope newspapers in Marin County, California.