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Real estate · Easements
Easement disputes
An easement is a right to use someone else’s land for a specific purpose, such as a driveway, utility line or access path. Disputes arise over whether an easement exists, how far it reaches and whether someone is interfering with it. Fernald & Zaffos represents property owners on both sides of easement disputes in California and Nevada.
Leads this practice
Brandon C. Fernald · Founding Partner
Founded the firm in 2009 after seven years at Norton Rose Fulbright.
How easements are created
- Express easements are written into a deed or a recorded agreement.
- Implied easements can arise when land is divided and an existing use was obvious and necessary.
- Prescriptive easements arise from use of another’s land that is open, notorious, continuous and adverse for five years in California (Civ. Code § 1007; Code Civ. Proc. § 321).
- Easements by necessity can arise when a parcel has no other access.
Common disputes
- Whether an easement exists at all
- The scope of an easement: who can use it, for what, and how often
- Gates, fences, parking or landscaping that block an easement
- Maintenance and repair costs
- Whether an easement has been abandoned or extinguished
These disputes often call for a title and survey review early on, since the outcome frequently turns on the historical record: old deeds, maps, photographs and testimony about years of use.
California and Nevada
Each state sets its own rules for prescriptive easements
California requires five years of qualifying use. Nevada also recognizes prescriptive easements under its own case law and time periods.
Common questions
Don’t see yours? Call (323) 410-0300.
What is a prescriptive easement?
A right to keep using another person’s land, created by use that was open, notorious, continuous and adverse for the statutory period, which is five years in California.
My neighbor blocked a driveway I have used for years. What can I do?
If you have a recorded easement, or your use may have created a prescriptive easement, you may be able to get a court order to restore access. Gather the deed, maps and evidence of how long you have used it.
Can an easement be terminated?
Sometimes, by agreement, by merger of the two parcels, by abandonment shown by conduct, or in some cases by adverse use by the owner of the burdened land.
Who pays to maintain an easement?
Generally the person who uses the easement, unless an agreement says otherwise. Shared easements can lead to cost-sharing disputes.
Do I need a survey?
Often. A survey and a title review tell you what is recorded and where the lines are, which usually decides the case.
Related
The information on this page is general and is not legal advice. Contacting the firm does not create an attorney-client relationship. Prior results do not guarantee a similar outcome.