The subject of easements regularly comes up when discussing rights of owners of adjoining parcels of land. A common example of an easement is where a property owner has an easement over their neighbor’s property in order to use a portion of it for access to their property, e.g. a roadway or driveway. The easement gives the non-owner of the land a non-possessory interest in the other’s property with a right to use the land for a specific purpose, e.g. access. In California, there are several ways in which real property owners can establish an easement over another’s property. One of these ways is called an implied easement or easement by implication.
An implied easement typically occurs when an owner of a large parcel of land divides the land into two (or more) parcels of land and then retains an easement over those properties for access. For example, a seller of land divides it into two parcels and sells one half to a new buyer. The parcel that the buyer purchases requires use of the seller’s driveway in order to get access to the buyer’s parcel. The buyer would have an implied easement to use the driveway over the seller’s parcel.
The judicial creation of an implied easement is complex and requires the party seeking the easement to prove several things. “Implied easements, like ways by necessity, arise from circumstances affording the basis for a finding that the parties intended to create the easement.” (County of Los Angeles v. Bartlett (1962) 203 Cal.App.2d 523, 530, 21 Cal.Rptr. 776) The law does not favor the implication of easements. (Id.) “The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances.” (Id.)
“The elements necessary to create a 'quasi easement' or grant by implication, upon severance of unity of ownership in an estate, are: (1) a separation of title (which implies unity of ownership at some former time as the foundation of the right); (2) necessity that before separation takes place the use which gives rise to the easement shall be so long continued and obvious as to show it was meant to be permanent; and (3) the easement must be reasonably necessary to the beneficial enjoyment of the land granted. [Citation]” (Id.)
“An implied reservation of an easement may be inferred only where there is an obvious ongoing use that is reasonably necessary to the enjoyment of the land granted.” (Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 635, 82 Cal.Rptr.3d 835.) An obvious or apparent use is one that is visible on the servient parcel or as sometimes referred to, an artificial or permanent structure on the servient parcel. (Warfield v. Basich (1958) 161 Cal.App.2d 493, 499, 326 P.2d 942) Landowners are not entitled to an easement by implication over adjoining property, absent a showing of existing and obvious use of any easement over adjoining property prior to the division of title. (Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049-1050, 45 Cal.Rptr.2d 389)
The rule in California as to whether or not an implied easement is reasonably necessary is set forth as follows: ‘An easement corresponding to a use to which one part of the property has been subjected for the benefit of another part will not be implied on a severance of ownership unless the use is necessary for the enjoyment of the dominant tenant; mere convenience is insufficient. Some courts require that the use be strictly necessary; but the weight of authority sustains a rule less exacting than that of strict and indispensable necessity, namely, that the degree of necessity is such merely as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made. The test of necessity is whether the party claiming the right can, at reasonable cost, create a substitute on his own estate. It has been held that the rules as to ways of necessity should be applied.” (Navarro v. Paulley (1944) 66 Cal.App.2d.827, 830, 153 P.2d.397 [a garage that encroached approximately five feet on to neighboring property was easily movable, so no implied easement was granted.] see also Leonard v. Haydon (1980) 110 Cal.App.3d 263, 268-273, 167 Cal.Rptr. 789 [finding no necessity where alternative means of access were available at a reasonable cost])
A review of the legal authority above and other cases in California discussing implied easements show that it is a disfavored method for creating an easement unless all the criteria are met. In order to find out if you have a right to an implied easement you will need to determine when the lots were split and what the intent of the owner of the lots was as to use of the portion of the property that you are seeking an easement over. These are complicated issues and may require the consultation and assistance of an attorney specializing in real estate matters. If you have questions regarding an implied easement or any type of easement, please do not hesitate to contact Steve Blake at the Blake Law Firm.