Blog Archives

Extinguishment of Easements by Merger

  There are many ways that an easement can be extinguished or terminated. In this post, I discuss how an easement can be extinguished by merger. In later post we will discuss situations where an easement is not extinguished by merger. As discussed in some of our previous posts, by definition, an easement is the right to use or prevent use of the land of another. As a result, a person cannot have an easement on his or her own land. (See Civ. Code § 805.) Therefore, as further discussed below, an easement can be extinguished when the same person acquires the fee title to both dominant and servient tenements. (See Leggio v. Haggerty (1965) 231 Cal.App.2d 873, 881.) A merger occurs where the same person owns both the

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Posted in Easement

What is a Public Utility Easement (PUE)?

Most properties have PUEs. PUE stands for Public Utility Easement. Like other easements, a PUE grants certain rights to the owner of the easement. If you own your home, a PUE may explain why you woke up to find an electrician on the utility pole in your backyard without bothering to ask your permission first (that being said, the power company will generally reach out to you before just sending someone to invade your backyard – but, they legally do not have to). Our real estate attorneys have experience dealing with PUEs and the scope of the same. PUEs (in California) arise from the terms of Government Code section 66475. Section 66475 provides that as a condition of approving a subdivision map a local government may require

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Posted in Easement, Public Utility Easement

Whose Responsibility Is It to Maintain An Easement?

Our Los Angeles based easement attorneys constantly deal with easement disputes of many types.  One issue that comes up from time to time is whose responsibility it is to maintain an easement. The short answer is – the owner of the easement is responsible for maintaining the easement. In other words, if you have an easement that allows you to use a portion of another person’s or company’s land, then it is your responsibility to maintain the easement – it is not the responsibility of the servient tenement (the person whose land is burdened by the easement). In fact, the owner of an easement has the right and obligation to maintain the easement. Moreover, they have a duty to keep in the easement in a safe

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Equitable Easements in California

As we have discussed in previous posts, there are many methods of creating an easement. Today, we discuss the creation of an easement based on principles of equity. In certain situations where you cannot establish a prescriptive easement for a physical encroachment, you may be able to establish an equitable easement. In fact, most, if not all, cases that grant equitable easements arise out of physical encroachments that otherwise qualify as prescriptive easements. (See Christensen v. Tucker (1952) 114 Cal.App.2d 554 [affirming an equitable easement to maintain concrete wall encroaching on neighbor’s property]; Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 [affirming an equitable easement to maintain extensive landscaping and irrigation encroaching on and under neighbor’s property]; Field-Escandon v. Demann, supra, 204 Cal.App.3d 228 [affirming an equitable easement

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Posted in Easement, Equitable Easement, Prescriptive Easement

Obtaining a Prescriptive Easement in California

As we discussed in previous posts, there are many methods of creating an easement. Today, we discuss the creation of an easement by prescription.  Establishing a Prescriptive Easement To establish a prescriptive easement, a claimant must prove use of the property, for the statutory period of five years, which has been: (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under a claim of right. (Main Street Plaza v. Cartwright & Main (2011) 194 CaL.App.4th 1044, 1054.) Generally, the claimant has the burden of proof of proving each of the elements necessary to establish that the easement has been created by prescription. (Code Civ. Proc. § 321.) Whether the easement satisfies the above requirements is considered a question of fact.

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Posted in Easement, Prescriptive Easement

How to Establish an Easement by Necessity

In one of our Los Angeles Easement attorney’s previous posts, we gave a general overview of easements and the various methods of creation. In this post, we discuss easements that are created by necessity. The easement by necessity is a product of public policy that favors the productive use of land and discourages the waste of assets merely because of a lack of access. (Kellogg v. Garcia (2002) 102 Cal.App.4th 796; Hewitt v Meaney (1986) 181 Cal.App.3d 361.) Based on this public policy, in certain limited circumstances, an easement may be created by implication where it is “absolutely essential” as access to a dominant tenant. (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 130.) As further discussed below, an easement is created by necessity only where: (1)

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What Is An Easement?

An easement is an intangible interest in the land of another that gives its owner the limited right to: (a) use the land of the other person; or (b) prevent the other property owner’s use of his or her property. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1306.) The land that is entitled to the benefit of the easement is called the dominant tenement. The land that is burdened by the easement is called the servient tenement. Easements may be affirmative or negative. An affirmative easement gives its owner the right to do something on the land of another. One example of an affirmative easement is when on person has the right to cross over another person’s land. Another example of an affirmative easement is

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