easements & boundary law in california

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that the information presented does not constitute legal advice and is being

presented for informational purposes only. You agree that no attorney-client

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this broad overview may not apply to your specific circumstances.

What Are Easements__________

NON-POSSESSORY INTEREST IN SOMEONE

ELSE’S PROPERTY

DEFINITIONCHARACTERISTICS

FORMATION

BASICS• Type Based on How Created• Set of Elements to Establish• Recorded By Documents• Encumbrance• Shared Use

DEFINITIONCHARACTERISTICS

FORMATION

TYPES OF EASEMENT RIGHTS

AccessUtilityLightAirViewParkingMaintenanceWater Rights

FishingRecreationSupportRetaining WallsFencesParty WallsExclusive*

DEFINITIONCHARACTERISTICS

FORMATION

What Easements ARE NOT__________

⊗OWNERSHIP

DEFINITIONCHARACTERISTICS

FORMATION

MAINTENANCE

LEGAL DESCRIPTION

SCOPE/EXTENT OF RIGHTS

RESTRICTIONS

PROTECTIONS

CHARACTERISTICS

DEFINITION

FORMATION

How Formed__________

OWNER | JUDGE• Express • Necessity

• Prescriptive• Equitable

FORMATION

DEFINITION

CHARACTERISTICS

Can An Easement Be

Obtained?FORMATION

DEFINITION

CHARACTERISTICS

• Fact-specific determination• Cooperation of property owner• If not, are easement elements met?

EXPRESS

EXPRESS

PRESCRIPTIVE

NECESSITY

EQUITABLE Specifically granting an easement to another, by

way of a written instrument that is

recorded. Found on a Preliminary Report

EXPRESS

EXPRESS

PRESCRIPTIVE

NECESSITY

EQUITABLE

Interpretation of Express Easements:

permissible use determined by intent of the parties, historical

use

NECESSITY

NECESSITY

EXPRESS

PRESCRIPTIVE

EQUITABLE

Easement necessary for the owner to gain access to his or her landlocked

property

NECESSITY

NECESSITY

EXPRESS

PRESCRIPTIVE

EQUITABLE ELEMENTS1. Two parcels 2. Previously under common

ownership3. One parcel is landlocked4. Access

PRESCRIPTIVEPRESCRIPTIVE

EXPRESS

NECESSITY

EQUITABLE

A non-owner can acquire a right to use land based on time & nature of use

PRESCRIPTIVEPRESCRIPTIVE

EXPRESS

NECESSITY

EQUITABLE ELEMENTS1. 5 years of continual use2. Open, notorious, & visible

possession3. Hostile & adverse to owner4. Under a claim of right

PRESCRIPTIVEPRESCRIPTIVE

EXPRESS

NECESSITY

EQUITABLE There is no such thing as an exclusive prescriptive

easement

Garden-variety fence disputes do not equal prescriptive easement

EQUITABLEEQUITABLE

NECESSITY

EXPRESS

PRESCRIPTIVE

Court exercises equitable jurisdiction

when grounds for other easements do not exist

EQUITABLEEQUITABLE

NECESSITY

EXPRESS

PRESCRIPTIVE

ELEMENTS1. Party used & improved easement2. Innocent belief of right to use land3. Irreparable harm if could not

continue using4. Affected owner would suffer little

harm

Outside the Scope of Permitted Use

How to Determine Scope

__________

Differences in Different Kinds of

Easements

Abandoned Easement

ELEMENTS1. Non-Use2. An Intention to

Abandon the Easement

3. Damage to the Owner of the Servient Estate from Continued Existence of Easement

Air, Light, & View Easements

Commonly Desired

__________

No Inherent Right

TITLE REPORT

Issues•Fence Disputes•Trees•Property Line•Driveways

NOT EASEMENTS

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