Updated on May 21, 2025

Disputes regarding easements and right of way issues are fairly common in California. These matters can be particularly contentious when they involve private property. Whether you are a homeowner, prospective buyer, or property developer, understanding right of way through private property is essential to protect your interests and avoid costly legal battles.

What Is a Right of Way Through Private Property?

A right of way through private property is a type of easement that grants someone who doesn’t own the property the legal right to use a specific portion of that property for a particular purpose, most commonly for access. In California, these easements are crucial legal instruments that balance property rights with practical necessities.

The most common type of right of way is an access easement, which allows someone to cross another’s land to reach a public road or another property. This might be a pathway, driveway, or road cutting across someone else’s land.  These are ingress/egress easements that allow the non-owner of the property to go to and from.

Types of Right of Way Easements in California

In California, right of way easements generally fall into several categories:

1. Express Easements:

These are explicitly created through written documents, typically within a deed or separate easement agreement. Express easements are the clearest form of establishing a right of way, as they specifically outline the location, dimensions, and permitted uses. For example, if you sell a portion of your property but need to maintain access to the back of your remaining land, you might include an express easement in the deed that reserves your right to use a specific path through the sold property.

2. Implied Easements

These arise from the circumstances rather than explicit documentation. California courts may find an implied easement exists when:

• There was a common ownership of the properties before they were divided.
• During this common ownership, an obvious use existed (like a driveway).
• This use was reasonably necessary for the enjoyment of the property.
• The use has been continuous.

3. Easements by Necessity

When a property would be landlocked without access across another property, California law may recognize an easement by necessity. These require:

• A prior common ownership of both properties.
• A necessity for access at the time the properties were divided.
• A continuing necessity for access.

4. Prescriptive Easements

One of the most contentious types, prescriptive easements arise when someone uses another’s property without permission for at least 5 years in California. The use must be:

• Open and notorious (obvious to the property owner)
• Continuous and uninterrupted for the statutory period
• Hostile and adverse to the owner’s rights (without permission)
• Under a claim of right

Legal Framework for Right of Way in California

California law regarding easements and right of way is governed by both statutory provisions and case law. The California Civil Code Sections 801-813 address various aspects of easements, including creation, termination, and scope.

The California courts have established significant precedents that guide how these laws are applied. Our lawyers have extensive experience litigating these types of matters, some of which of resulted in clarifications of California law.

Common Disputes Over Right of Way

Boundary Uncertainties

Many disputes arise because the exact boundaries of the easement weren’t clearly defined. Always get a professional survey to document the precise location and dimensions of any right of way.  For example, if someone thinks they own a driveway on their property but the reality, based on a survey, is that the driveway is on someone else’s property.

Scope of Use Conflicts

Even when a right of way exists, conflicts often emerge regarding what constitutes proper use. For example, an easement for “access” might lead to disagreements over whether it allows for utility lines, increased traffic, commercial use or even parking is allowed.

Maintenance Responsibilities

Who is responsible for maintaining the right of way? Unless specified in the easement document, California law generally places the burden on the party benefiting from the easement, but this can become complicated when multiple parties use the same right of way.

Interference Issues

Property owners sometimes inadvertently (or intentionally) interfere with established rights of way by placing obstacles, changing the terrain, or restricting access. California law prohibits the owner of the servient estate (the property burdened by the easement) from unreasonably interfering with the easement holder’s rights.

Creating a Right of Way Agreement in California

If you’re establishing a new right of way, you will need a comprehensive written agreement. The best way to protect your interests is to have the easement established  by a California real estate attorney through agreement or through a lawsuit.  Key factors will be:

1. Precise Location and Dimensions: Include a professional survey with the agreement.
2. Permitted Uses: Clearly state what activities are allowed.
3. Maintenance Responsibilities: Specify who maintains the right of way and how costs are divided.
4. Duration: Establish whether the easement is permanent or temporary.
5. Transferability: Clarify if the right of way transfers with property ownership.
6. Termination Conditions: Outline circumstances under which the easement can be terminated.
7. Dispute Resolution Method: Include a process for resolving future conflicts.

This agreement should be properly recorded with the county recorder’s office to ensure it becomes part of the property’s public record, binding future owners.

Recent Developments in California Right of Way Law

California’s approach to right of way issues continues to evolve. Recent court decisions have emphasized the importance of balancing property owners’ rights with the practical needs of easement holders.

In a notable 2023 case, the California Court of Appeal reinforced that even when an easement exists, its use must be reasonable and not unduly burden the servient estate. The court found that significantly increasing the volume or nature of traffic on a residential access easement could constitute an overburdening of the easement.

How to Protect Your Rights

Whether you hold a right of way across someone else’s property or have granted one across yours, protecting your legal rights requires vigilance and documentation:

For Easement Holders:

1. Document Your Right: Ensure your easement is properly recorded.
2. Regular Use: Maintain regular use consistent with the easement’s purpose.
3. Documentation: Keep records of your use and any maintenance performed.
4. Address Issues Promptly: If the property owner interferes with your right of way, address the issue formally and promptly.

For Property Owners:

1. Know Your Property: Be aware of any easements affecting your property before purchase.
2. Understand Limitations: Recognize what you can and cannot do regarding the easement area.
3. Written Agreements: Never rely on verbal understandings for access permissions.
4. Regular Inspections: Monitor how easements on your property are being used to prevent prescriptive rights from expanding.

When to Seek Legal Help for Your Right of Way Dispute

It’s important to consult with a California real estate attorney if you’re facing rights of way disputes. Property owners or buyers should seek legal counsel when purchasing property affected by or benefiting from easements, negotiating new right of way agreements, facing disputes over existing rights of way, encountering unauthorized use of their property, or considering property improvements that might affect an easement. With California’s complex property laws and high land values, professional legal guidance can save substantial time, money, and stress in the long run. The complexity of easement law often requires specialized knowledge to navigate successfully, particularly in California’s competitive real estate market.

Right of way through private property represents one of the most nuanced areas of California real estate law. These legal rights balance individual property rights with practical necessities and community interests. Whether you’re granting, receiving, or disputing a right of way, understanding the legal framework and seeking proper documentation is essential.

Remember that each situation has unique characteristics that might affect how general principles apply. Local zoning regulations, historical use patterns, and specific deed restrictions can all influence right of way disputes in California. By approaching right of way issues with clear documentation, reasonable expectations, and professional guidance when needed, California property owners can avoid many of the common pitfalls that lead to expensive and time-consuming litigation.

At Schorr Law, our real estate attorneys have extensive experience navigating easements and right of way disputes. If you’re facing a right of way dispute, call our office at (310) 954-1877 or fill out the Contact Form on our website to speak with a member of our team.