real-estate-blog

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) the servient and dominant tenements were in common ownership at some point in time; and (2) as a result of conveyance by the common owner, one parcel became completely landlocked. (Moores v. Walsh (1995) 38 Cal.App.4th 1046; Roemer v. Pppas (1988) 203 Cal.App.3d 201.) The servient tenement is the land that is burdened by the easement, i.e. the land upon which the easement is located. The dominant tenement is the land that the easement benefits.

The first requirement often occurs when a landowner sells one of two or more parcels, and the parcel sold is completely landlocked by the remaining property of the grantor. It can also occur when the parcel sold is partly landlocked by the land of the grantor and partly by the land of others. When either of these situations occurs, unless there is an express intention to the contrary, the law implies that the parties intended to create an easement across the remaining land of the grantor to benefit the property conveyed. (Mesmer v. Uharriet (1916) 174 Cal. 110, 112; Barnard v. Lloyd (1890) 85 Cal. 131, 132.)

The second requirement of a having a landlocked property is strictly construed. Specifically, in order to be considered landlocked, the landowner must have no way through his own land to access his property – it is not enough that it is difficult for the owner to access his or her property. Accordingly, it is not enough if the only way to access your land through your own land is very steep or very narrow. As such, the easement by necessity only continues as long as the necessity exists. Based thereon, an easement by necessity is terminated when the owner of the dominant tenement acquires some other access that is reasonably sufficient for the beneficial enjoyment of the dominant estate. (Kellogg v. Garcia, supra, 102 Cal.App.4th 796.)

Schorr Law has experience dealing with the creation and termination of easements, as well as analyzing easement issues. To inquire about a free consultation please call (310) 954-1877 or email us at info@schorr-law.com. You can also send us a message via our Contact Form.

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