Buying and Selling Real Estate: Easements
California is a place that many come to seeking its warm weather, prosperous lifestyles, and of course, its beaches. As a tourist, individuals seeking to use the state’s beaches for a few days of leisure do not worry about whose property they are walking on when they make their way from hotel room t
EasementsAs a California home or business owner, however, that bit of street, dirt, or grassy path between the public and the beach can be worrisome if caution is not used when first obtaining the property. The laws that allow beachcombers to access public bits of sand by walking through private property have created a legal burden on a property called an easement. This right-of-way can be agreed to by the private landowner, but may also be in place regardless of the feelings of the property owner. Before purchasing a property that is on or near the ocean, it is important for a buyer to know exactly what they are buying, including any easements that may already exist that would allow strangers to use their newly purchased land for beach access.
Types of EasementsExpress Easement: An express easement exists when a property owner expressly agrees to allow an easement (or burden) on his property for the benefit of another. For example, if one homeowner has the only pathway that allows access to a private beach that is shared between other homeowners in a subdivision, he could agree that other homeowners and their guests may traverse his land (on the path) in order to go to and from their shared beach. This agreement must be in writing to be enforceable, but it would go a long way to keeping the peace between neighbors. Implied Easement and Easement of Necessity: These types of easements are typically ordered to exist by a court after two landowners dispute an area that was traditionally shared, or if there is no other option for one landowner to access something important (i.e. a public road) from his or her property. The court would look to the historical use of the area in dispute and if it finds that the landowners originally intended for the area to be shared, it would likely find that an implied easement exists. Furthermore, if it is found that the area in dispute is the only possible area of access for one landowner, an easement of necessity would be created. Prescriptive Easement: Perhaps the easement that causes most litigation in this area of law, a prescriptive easement involves the "continuous use" of another's property in such a manner that the use is conspicuous to the landowner for a period of at least five years. What this means is that if a portion of a private landowner's property has been used for over five years by someone else, regardless of whether the landowner agreed to the use, such a use may become a burden on the land in the form of a legal easement. This would potentially allow others to use the land in a similar fashion, without the landowner being able to later deny such use. This latter type of easement is a common one found all throughout the beach properties that line California's coastal areas. Litigation surrounding prescriptive easements is often highly contentious and pits private interests against those of the public, who without such easements would be cut off from the otherwise public beach areas.