real-estate-blog

What Is Easement by Necessity or an Easement Appurtenant?

Updated on August 6, 2021

What Is Easement By Necessity?

In one of our Los Angeles Easement attorney’s previous posts, we gave a general overview of what is an easement and the various methods of creation with different types of easements. In this post, we will discuss what is easement by necessity & how to get an easement by necessity?

How To Imply an Easement by Necessity – California Law

The easement by necessity or easement appurtenant 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.)

ALSO READ  Should Easement Users Help Pay for Maintenance?

Which of the following is an example of an easement by necessity? 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.

How to Get an Easement by Necessity?

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.)

ALSO READ  What are Boundary Disputes or Property Line Disputes?

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.

An Easement by Necessity Is Often Created by the Court to Prevent Rights

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. If you are looking for a Los Angeles real estate attorneys? Schorr Law has the top rated easement dispute attorney in Los Angeles. 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.

ALSO READ  Termination of a Public Right of Way by Abandonment Via Non-Use
Scroll