Easements Attorneys in San Jose, California

When you buy a piece of property (commercial, residential, or otherwise), the land on which it sits may be subject to both public and private easements. Easements allow someone or some entity who has no right of ownership to the property to use it for their purposes.

Utility companies often have easements for sewage or electrical lines that run underneath or through the property. Adjoining property owners may have easements to allow them to use your land to access their own property. Utility easements are often expressed in the deed to the property, while private easements may fall under other legal definitions.

From the other perspective, you may be purchasing a property that requires you to use the land of another for your purposes. Say you buy a piece of farmland, or a site for a home, that sits behind a property that blocks access to the only public road available. How do you gain access to the road? Obviously, you will need to obtain an easement.

California law recognizes four types of easements, and you can probably avail yourself of one of them to gain access to the public thoroughfare that you will need to make your purchase viable. If you are the landholder who stands in the way of that access, you too have right to grant access but at the same time preserve your right of ownership and sometimes even revoke the access later on.

If you’re purchasing property in or around San Jose, California, and you want to understand and exercise your rights to obtain an easement – or to grant or deny one – contact Mosaic Law, P.C. We know and understand real estate law in the Golden State and can help you with issues around easements. We can discuss your situation with you and advise you of your legal options going forward.

Mosaic Law, P.C. also proudly represents clients throughout South County, Santa Clara Valley, and the Santa Cruz Mountains.

What Qualifies as an Easement
Under California Law?

The basic statutory framework for easements is set forth in California law. There are generally four types of easements:

EXPRESS EASEMENT: Express means written. One owner grants another owner an easement for their benefit. Express easements can be created through a grant or a reservation. A grant is just that – it grants an easement to another, for instance, granting the right of passage over one’s property. A reservation involves the sale of the land to another while reserving the right to use the land for one’s own benefit.

IMPLIED EASEMENT: The easement is not in writing, but is historical. According to the California Civil Code, “the owner’s prior existing use of the property was of a nature that the parties must have intended or believed the use would continue.”

EASEMENT BY NECESSITY: If you own property that is blocked from public access by an adjoining property, the law recognizes that an easement may be necessary, whether there is prior use or not.

PRESCRIPTIVE EASEMENT: This is a variation of adverse possession in which one party uses another party’s property for a period of five years or longer in a “continuous and uninterrupted” pattern without permission but the use was “open and easily observable.”

Easement Disputes

Utility easements can sometimes prevent an owner from improving his or her property. As an example, a homeowner decides to add a rec room to the existing structure, but the addition will block access to a sewage pipe running through the land. 

If the utility company subsequently needs to work on the sewage pipe and the rec room is blocking access, the company can tear down the intruding structure and then charge the homeowner for the demolition costs.

Utility easements are often listed in the deed to the property, so owners are advised to check for easements before expanding the existing structure, adding a swimming pool, or planting trees that will block access.

Another dispute that can arise involves the maintenance of a jointly-used access road. Say you have two homeowners situated on a hill behind your property, and they use a driveway or roadway that cuts through your property. What happens if the joint accessway starts to deteriorate? Can you get the others to help defray the costs of repair?

California Code says that if “the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.”

In other words, if there is nothing in writing, disputes can erupt.

Obtaining and Ending an Easement

If you need an easement, you generally will have to approach the owner of the property where you require access or usage rights to obtain their permission, unless it is deemed an easement by necessity. Alternately, you can simply avail yourself of access and aim for an implied easement or a prescriptive easement.

If you’re the property owner whose land is subject to an easement, it can be difficult to end the easement. A good alternative is to grant a license to the other property owner for use of the land while they own the property. You can then revoke the license at will (depending on the language in the license), and further, the license – unlike an easement – will not be transferable to a subsequent owner.

Get Skilled Legal Guidance Today

Before you buy a property, you should check for any and all easements. If they’re pre-existing, you’re generally going to be stuck with them. An experienced and knowledgeable real estate attorney can help you examine the pertinent documents and deeds and advise you of any easements that could affect your purchase.