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  • The Rights of Land Owners Impacted by Easements

    In this episode of Digging Into Land Use Law, Nossaman Real Estate partners Simon Adams and Karla MacCary get down and dirty and into the weeds of the rights of land owners that are impacted by easements. It can be important to know how these rights can be established given their effect upon property values. Simon and Karla examine the risk of easement creation and the correct precautions to be taken by owners. They also debate the benefits and burdens of easements by land owners and developers that use these legal rights to enhance the value of their land.

    Transcript: The Rights of Land Owners Impacted by Easements

    0:00:00.0 Simon Adams: In this episode of digging into land use law, we get down and dirty and into the weeds of the rights of land owners that are impacted by easements. It can be important to know how these rights can be established given their effect upon property values. We take a look at the risk of easement creation and the correct precautions to be taken by owners. We will debate the benefits and burdens of easements by landowners and developers that use these legal rights to enhance the value of their land.


    0:00:31.4 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.


    0:00:47.7 SA: Good morning, good day, or good evening, depending on what time you're tuning in. My name is Simon Adams, and I'll be your moderator for this episode. I'm a partner in the Nossaman's Real Estate Group, working out of our San Francisco office. Today, it's my privilege to interview my fellow Nossaman partner, Karla MacCary. Karla has more than 25 years of experience advising on real estate financing and transactions. She serves as the co-chair of our Firm's Real Estate Group, and she works out of our downtown Los Angeles office where she enjoys some of the best views of the city. Karla, welcome to this episode. Please, can you explain to the listeners the essence of an easement so that we can all recognize it when we see it?

    0:01:29.5 Karla MacCary: Well, thank you, Simon, for that nice introduction. Well, I'll start by defining what an easement is, and it's an interest in the land of another that gives the owner of that easement the right to use the land or to prevent another owner from using the land. Now, an easement is distinguished from a license, which is the personal privilege, and a license is usually something that can terminate while an easement is permanent. An easement can be insured by a policy of title insurance while a license cannot because it's not an interest in the land.

    0:02:12.6 SA: If having an easement is preferable to a license, how does one go about setting up an easement?

    0:02:19.5 KM: Easements are created by many methods, and the first, and I'll say it the best, most preferable is by an express grant in an easement deed. For example, an owner of Parcel A as grantor grants to the owner of Parcel B as grantee an easement for pedestrian and vehicular purposes, say, 15 feet wide measured from the center line, for ingress and egress from a public street known as Main Street to parcel B.

    0:02:52.9 SA: Since we have a podcast here and people cannot see the documentation, could you explain to our listeners what it may look like?

    0:03:02.5 KM: Exhibit B is going to be a legal description, and they'll also have a map attached to it that shows it drawn out, and the legal description in this instance would probably be a legal description of that center line, and then the map would show 15 feet on either side of it.

    0:03:24.1 SA: Karla, are there other ways to create an easement?

    0:03:26.9 KM: Yes, similar to an express grant, you can have an express reservation in a grantee. For example, in a grant of Parcel B by the owner of Parcels A and B, the grantor accepts and reserves over Parcel A an easement for pedestrian and vehicular access 15 feet wide measured from the center line for ingress and egress from the public street known as Main Street to Parcel B.

    0:03:57.2 SA: Karla, would I be correct in my understanding in that scenario, the owner of Parcel B, having reserved their route to Main Street of Parcel A then sells the land, and we have two different parties, the easement here would remain in place to ensure the road connecting Parcel B to the Main Street is preserved?

    0:04:20.4 KM: Exactly. The other ways to create an easement are a bit messier. The first one of these methods is by implication. And easements can arise by implication under circumstances where the court concludes that the parties intended to create an easement even though they failed to do it in writing and put in a record, and that usually arises where the property used to be held in common ownership, and then part of it was transferred. And an easement by implication can also arise when a landowner subdivides the land, and then the subdivision map shows streets and alleyways that are within the property and provide access to different lots, and then when a lot is conveyed, the deed in their description generally refer to that same map, and that map which has the streets and alleyways becomes part of the deed.

    0:05:17.7 SA: Okay, so if I have a map noting the easements, will that hold up in a court of law?

    0:05:24.7 KM: Yes, it should hold up in court. Another way you can get an easement is by necessity, and again, involving the court. The court will create an easement by necessity based on public policy, in that public policy here, it favors the productive use of land and discourages waste of assets just because there is a lack of access. The court should do this only when the easement is absolutely essential, such as when the land is landlocked.

    0:05:58.6 SA: Again, this is an easement established through the courts?

    0:06:02.8 KM: Yes, yes. And another way courts create easement or are involved with the creation of easements is through the condemnation process. The governmental agency can condemn an easement through the eminent domain process, and at the end of the process, the easement appears of record in the form of a document from the court, the order of condemnation.

    0:06:27.5 SA: If the government seizes my property through eminent domain, and then by filing paperwork as part of that process, an easement can be established. Karla, would the easement be mentioned in the paperwork?

    0:06:41.3 KM: Yes, yes, it would. Now, the last method to create an easement is by prescription. And this... It's a notorious method of creating an easement. It's very similar to adverse possession. The elements of creating an easement by prescription are very similar to adverse possession, but they do not include the payment of taxes unless the easement parcel is separately assessed.

    0:07:08.5 SA: Karla, it seems to me very appropriate that this type of easement is considered notorious. You've just described an easement established on my land without my consent and essentially by way of trespass.

    0:07:21.5 KM: Yeah, that's basically right. So, Simon, do you know, the elements of prescriptive easement that you could explain for our audience?

    0:07:31.7 SA: There's two elements that should be looked for. Firstly, the land must have been used and used continually for a period of five years. And secondly, the land must have been possessed in a manner that's open, notorious and clearly visible to the owner of the burdened land, and hostile and adverse to that owner. Now, whether the criteria have been met is a question of fact. And the person claiming the interest has the burden of proof, and in fact, they're entitled to a jury trial. The claimant doesn't need to show any necessity, but they do need to show the use unlawfully infringed on the rights of the owner of the burdened property. So that's to say our claimant will need to show the use was a trespass. However, there doesn't need to be an intent to violate the rights of another. The person can acquire a prescriptive easement through the mistaken idea that the use that they're making was their right in the first place. Karla, what elements must we be aware of in our review if a project is going to rely upon a prescriptive easement or an easement by implication?

    0:08:44.0 KM: Well, if you're developing a project as a practical matter, you would need to go to court to get the interest recognized and recorded, and a lot of this is for title insurance reasons that... To get financing, you need title insurance, and title insurance companies have underwriting requirements, and they don't like to buy into lawsuits. They want to have it resolved and have the court recognized, and have it put of record, and then they will insure it.

    0:09:18.5 SA: A property owner generally cannot acquire an exclusive prescriptive easement that's the equivalent of a fee title. For example, a prescriptive easement may not be used to resolve a backyard fence dispute. However, courts have recognized an exception to this prohibition for cases involving public health safety and utility services. Karla, are there cases that would help in further understanding the nuances of the general position?

    0:09:47.1 KM: Yeah, a good case on this came out in 1991, and it's called Otay Water District vs Beckwith, and in that case, a water district acquired land, but it turned out almost 1.7 acres of that land wasn't owned by the grantor, but the district was not aware of that when they acquired the land. They thought they had the right to it. They fenced it, they built a reservoir, used the reservoir, and it was readily apparent that use. And about 20 years later, the district, for whatever reason, they discovered this mistake, and they felt that they had to correct it. They brought a court action that successfully gave them a prescriptive easement for that 1.7 acres. The court held that the easement must be exclusive despite the general rule, to protect the public water supply from contamination. They couldn't risk having the true owner of the underlying property come try to use it or the general public. The court also noticed that the easement would terminate when the water district stopped using that 1.7 acres for a reservoir. While they found an exclusive easement, they did not grant them a permanent easement.

    0:11:18.5 SA: Let us imagine for a moment, I'm a property developer and my big concern is whether my main property project is going to be subject to any easements either by prescription or necessity, which could impact upon my planned use of the property. Prescriptive easement can be acquired obviously both by specific persons or by the general public, and whether an easement has been created for the benefit of the general public or the private individual will obviously depend upon whether it's been continuously used in a required manner. Karla, what are the protections might I be considering and looking for regarding my development?

    0:12:00.0 KM: Well, here in California, we have two statutory methods to protect owners from losing property through prescriptions, but those methods cannot undo a prescriptive right that has already been earned before the statutes were passed. So, under Civil Code Section 817, an owner can record with the county recorder a notice with the legal description of the land. And when the use is by specific persons such as neighbors rather than just the general public, that notice, that 817, Civil Code Section 817 notice must be given to the particular user by registered mail or certified mail return [0:12:43.5] ____ requested.

    0:12:47.0 KM: It's worth noting that the consent that the property owner grants can also be revoked by recording a notice of revocation or delivering a notice of revocation to the particular users, but under Civil Code Section 817, after recording the notice and before the revocation, the owner is not supposed to prevent or obstruct appropriate public use. The next statutory method to prevent the acquisition of easement rights through prescription is by posting, and you post a sign at the entrance to the property or intervals of 200 feet along the boundary. The notice should read, "Right to pass by permission and subject to control of owners, Section 1008 Civil Code." So plaques with these notices are often seen on sidewalks and in urban areas. We see them in Downtown Los Angeles and a few places, and the owners have installed these plaques because in the event that their building is destroyed or taken down, they want to reserve the right that maybe they want to build on that area that they're letting the public use at the present time for a sidewalk.

    0:14:02.8 SA: I'd like to turn our attention now to the scenario that is encountered where there's a trail and it's been used over the years for, say, hiking, horseback riding or vehicles, and in this regard, it's important to highlight California Civil Code 1009. This is the law that was passed in '71 in order to encourage private owners of land to permit entry by the public for recreational purposes. Prior to this code becoming law, owners of the undeveloped land were forced to close their trails [0:14:35.1] ____ to keep the public from acquiring a permanent easement. Karla, can you provide some further observations on the effect of this code?

    0:14:44.3 KM: Section 1009 provides that except for land lying within 1000 feet of the mean high tide line of the Pacific Ocean, or between that line and a public road, whichever is less, the public cannot acquire any rights in private property by prescription, unless public funds are being used to improve and maintain that property. So today, in order to prove a prescriptive easement, the claimant would have to show that the easement was acquired before 1971, which is when Section 1009 was passed. And they do try. Just two years ago, there was a case on the issue of trails, and there were witnesses providing testimony about how when they were children, they hiked these trails with their families in the 1950s and the 1960s. And it goes without saying that as time goes on, it's going to be harder and harder to bring these cases because it's going to be harder to have witnesses that have memories of five years of use pre-1971.

    0:15:54.7 KM: It also should be noted that to prove an easement by prescription is highly specific. If you will be investing money in reliance on an easement by prescription, you should confirm that right again through judicial action and record the judgement. Don't rely on your facts maybe similar to another case. And if the land you will be using for your project shows any evidence of adverse use such as trails or roadways, investigate further and see if there's a risk that there's a user who could claim a prescriptive use of the land. And prescription requires continuous use, so in one-off, someone using it in one-off is not going to show prescription, but you should observe over time and see if this use is something that is happening with some frequency. Finally, it's worth noting that you cannot get a prescriptive right against a governmental entity, and the government cannot lose its property through adverse possession.

    0:16:57.0 SA: Well, another issue I'd like your comments on Karla, concerned changed use. Let's consider easements that have been expressly granted or reserved and through prescription. However, in this scenario, a dispute arises because of party changes or intensifies the use of the easements they have. For example, let's say this may happen in a neighboring property being developed and the regular use of access is now being used for construction traffic or a road that was previously only used by hikers is now used by vehicles. Karla, what issues do you want us to consider regarding increased or expanded use?

    0:17:40.2 KM: Yeah, this is an issue where you do see a lot of disputes and litigation on this very issue. And the first place to look is the easement grant, assuming there is one that you have, that this is an easement that was created through an express grant or an express reservation. How specific were they? Was it just an easement for driveway purposes? Or did the language include driving purposes, including the ability and the right to park cars, store trash cans? Is landscaping mentioned? What about irrigation? Does it mention incidental purposes? Easements that are created nowadays, the custom with lawyers who represent a lot and work with real estate developers is to have a pretty detailed document that goes into a lot of detail about everything that can be done through that easement. But often you have what you have with property and the easement may be very simple, and it will require some analysis to determine what sort of rights you can do with the document that's drafted without finding yourself in a dispute with neighbors or the underlying owners. Now, because easements used to be fairly simple documents, general rules have developed about easements and their use. Simon, can you explain to our audience what some of these general rules are?

    0:19:19.7 SA: Yes, so once an easement has been created, both parties have the right to insist that so long as the easement is enjoyed, it shall remain substantially the same at the time it was accrued as a right, regardless of the relative benefit or damage to the parties by reason of a change in the mode and the manner of its enjoyment. The strict application of this rule has been relaxed to permit minor alterations in the sense of the use, as long as the change is one of degree and not a change of character. [0:19:49.7] ____ the easement can make minor changes in the use as long as there is no material or substantial increase in the burden on the servient tenement. So, an increase in use is contemplated, the creation of the easement is permitted, whether you've got increased use success, the success if it's a question of fact, and that depends on either the terms of the document that established the easement or the circumstances of its creation and the intent of those parties. The extent of the easement is inferred from the circumstances that existed at the time the easement was created. Now Karla, there are circumstances where a change of use may be permitted for technological developments if that new use is similar to the former use and the new use results from the change to technological conditions. Can you provide comments to us regarding this?

    0:20:43.1 KM: Yes, consideration is certainly given for technological advances, and we have a case example of that. That is in Salvaty vs Falcon Cable Television from 1985. And in that case, the owner of an easement for telephone poles and lines, the court found that that owner was allowed to use the easement and poles for cable lines because the additional lines did not increase the burden on the underlying property, and the use was consistent with the primary purpose of the grant and was within the natural evolution of communications technology. The extent to which use of an easement can be altered and the question of whether the use is excessive, and amounts to a surcharge of the easement on the burdened property, these are issues of fact that are specific in each case. But as a general rule, the owner of the dominant tenement must use the easement in a manner that imposes the least burden on the owner of the servient tenement, and every incident of ownership that is not inconsistent with the use and enjoyment of the easement is reserved to the owner of the land.

    0:22:01.9 SA: Well, thank you Karla, for joining me today and allowing me to pick through your extensive knowledge on this subject matter, and providing a good explanation of how easements work.

    0:22:13.3 KM: Well, thank you for having me, it was a pleasure.

    0:22:15.6 SA: And I'd like to thank our listeners for joining us in our podcast Digging Into Land Use Law. For additional information on this topic or other environmental land use issues, please do visit our website at nossaman.com. And finally, don't forget to subscribe to our Digging Into Land Use Law podcasts, so that you don't miss any of the new episodes. Until next time.


    0:22:44.1 S2: Digging Into Land Use Law is presented by Nossaman LLP and cannot be copied or re-broadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice and does not create an attorney-client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.


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