What is an Easement and Why Should You Care?
What is an easement? In a nutshell, it is the right to use someone else’s property for a particular purpose.
Common types of easements
The most common types of easements in Silicon Valley are ones we can’t easily escape: they are for power, water, perhaps phone lines. The utility companies have a right to go onto your land to get to the power or telephone lines in your backyard. They have a right to go there and do not need your permission, generally speaking, if the need arises. Pacific Gas & Electric can trim the trees under the power lines with or without your permission, but they will notify you that they are doing it.
Unless it’s an emergency, the utility companies don’t go on your property without advance notice.
For the owners of townhouses held in PUD ownership (not condo), the land on which the townhouse sits is owned and not just the airspace inside the unit. If there are private driveways to get to the home, normally that access is via an easement that the townhome owner has over the other parcel (the private driveway).
Less common easements
Easements can be given by the landowner to the person or organization that wants to use it too. This can be done for charitable reasons (such as access to a park being donated) or for a private road or driveway to a parcel that needs to be able to come and go over that road (often for payment of cash). F
For instance, the right to use a driveway or private road from one parcel to access another might be a great convenience to the person who wants the easement (it might be a much shorter route home than another alternative, or it may be the only possible access to that land). The Santa Cruz Mountains and the hilly areas of Los Gatos and Monte Sereno have many areas where this type of easement is in use. With shared driveways or private roads, there is normally a private road agreement in place to spell out how repairs are paid for and by what percentage. Some communities collect money annually to fund these driveways or roads, and others do not.
As a charitable example, an easement might be granted by a property owner to the general public to have a shortcut to a park or trail. In this case, the landowner might close the access off once a year and also post a “right to pass by permission” type of notice so that this easement is as a temporary gift and not a permanent loss of rights of the landowner. (An interruption in the use of the easement to make sure it’s still voluntarily given and not taken as a permanent right.)
In my career, I’ve seen odd easements. The strangest one was allowing a neighbor to place an above ground pool on the next door neighbor’s property.
How to learn about recorded easements
When buying or selling a home, easements will be listed on the preliminary title report. Normally these are simply the utility easements. Not every easement is recorded, though, so do not rely on the preliminary title report for assurance that there are no easements. Home or landowners must pay attention to the use of the land and be aware of any risk of the formation of prescriptive easements. Home buyers should check the land too and see if it appears that the property is being used by others.
Some title companies will automatically provide a color coded easement map. If you feel you aren’t sure about your home’s easement situation, you can request this. With complicated easements, it can be a big help to get a general sense of where the easements are located. Below is part of a color coded easement map – there would also be a “key” telling you which color is for what type of easement.
A “prescriptive easement” is one that happens by accident as far as the landowner is concerned. In this case, others openly and notoriously used the property owner’s land without interruption (as a shortcut, a driveway, etc.) for a period of years without the owner objecting or preventing that use. Eventually, the right to use the land for those purposes can become permanent. To form a prescriptive easement, the use must be open, notorious, for a period of years, and uninterrupted.
Near Village Lane in Los Gatos, there are some shops that sit along a walkway between Village Lane and the public parking lot (in the old train line area). The owner of the shopping center has placed a plaque in the aggregate walkway to make sure that the visitors know that this access is by permission (intending that it can be revoked at any time). This is important to keep the future use of that land in the owner’s hands. Imagine if in the years to come these owners wanted to tear down the current buildings and put in one large two or three story building with no walkway between Village Lane and the parking lot. Could the public object to the removed access? Perhaps. Will the notice in the ground prevent that from happening? That is up to the attorneys and judges to decide.
To give another example of trying to prevent a prescriptive easement, there were two homes in Cambrian Park with fences and gates – we’ll call them lots A and B. The the fence for Lot A extended further toward the street than that of Lot B. And the gate for Lot A opened not onto its own front yard, but onto the front yard of Lot B. (The gate was at a 90 degree angle to where it should have been.)
If the homeowner of Lot B did not object, but allowed the folks in Lot A to go through their gate and onto the land of Lot B for a period of time, it would become a prescriptive easement.
What to do? The only thing to do to prevent the prescriptive easement being formed is to object and to request (insist upon) the gate being removed or rebuilt such that no one had to cross onto Lot B anymore. Hopefully that would not require legal action. But to allow someone to cross your property without objection for a period of years is to invite the formation of a permanent prescriptive easement.
Could anything be worse for a homeowner than a prescriptive easement?
What is adverse possession?
Adverse possession happens when a prescriptive easement is in place AND the person trying to gain access of the land permanently also pays the property tax for that parcel for a period of years. It is a legal way to take someone else’s property in California.