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 when a utility company has the right to maintain utilities on your property and the right to maintain those utilities.
In contrast, a negative easement gives the owner of the easement the right to prevent another landowner from using a part of his or her land. (Darr v. Lone Star Industries, Inc. (1976) 94 Cal.App.3d 895, 900.) In other words, a negative easement operates as a restriction on real property. (Civ. Code § 784.) An example of a negative easement would be an easement for light. Another example of a negative easement would be an easement that prevents someone from constructing his or her building in a manner that would block your view.
There are various methods for creating an easement. An easement may be created by: (1) express grant, (2) express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10), estoppel, or (11) a court decision (e.g., an “equitable easement” arising out of the balancing of hardships in encroachment cases.) These 11 methods represent the only recognized methods of creating an easement on the land of another. In upcoming blog posts, I discuss each method of creation and how they may affect the relative duties of the servient and dominant tenement – each method of creation involves unique issues related its use and the relative duties of the servient and dominant tenements.
Schorr Law has experience analyzing easement issues related to all types of easements. To inquire about a free consultation please call (310) 954-1877 or email us at firstname.lastname@example.org. Our Contact Form is also available for you to send us a message.