Easement Disputes
and Responsibilities

An easement is the right of another party to use your property for a specific, limited purpose. Utility companies generally hold easements to lay pipes and conduits below your property. If a home behind you is landlocked by your residence, an easement may exist for the landlocked owner to travel over your land to get to the public road below.

Easement disputes may arise from a variety of issues, often involving boundaries. If a neighbor has built something that hangs over onto your property and you never gave permission for an easement to allow the overhang, a dispute can arise. Suppose you build a fence and a utility company needs to dig under it — what are your rights if they need to tear it down?

At The Heritage Law Group, we have offices in San Jose and Aliso Viejo, so we serve clients in both Northern and Southern California. If you’re involved in a real estate or easement dispute, contact us immediately. We will bring our four decades of real estate law experience to help you resolve the situation.

Types of Easements

California Civil Code Section 887.010 defines an easement as “a burden or servitude upon land, whether or not attached to other property as an incident or appurtenance, that allows the holder of the burden or servitude to do acts upon the land.”

Easements are broken down into two categories of affected parties: the dominant estate and the subservient estate. The dominant estate is the party that benefits from the easement, and the subservient estate is the party burdened by it. If Property Owner A uses a road through Property Owner B’s land to access a public thoroughfare, then Property Owner A is the dominant estate and Property Owner B the subservient estate.

California law generally recognizes four types of easements:

  • Express Easement: A landowner grants an easement to another person or entity and expresses it in writing through a deed, contract, will, etc.
  • Implied Easement: An implied easement is created when one property is divided into two or more parcels, and one or more of the new owners has a “reasonable” necessity to access the other owner’s property for a specific purpose. The use for which an implied easement is claimed must have existed prior to the division of the land. Implied easements can exist without any written documents.
  • Easement by Necessity: Similar to an implied easement as discussed above, an easement by necessity is created when there is no alternative. A prime example would be a parcel that is suddenly landlocked with no way to access a public street without traversing the property.
  • Prescriptive Easement: A prescriptive easement arises when someone uses your land for at least five years in an “open and notorious” way that is also hostile. “Open and notorious” means that the use should’ve been obvious. “Hostile” means it was done without the permission of the owner of the land. One example might be a fence between two properties that violate the boundary of one owner’s land and has existed for more than five years. A prescriptive easement for the fence can be allotted based on the legal principle of adverse possession.

Trespassing and Legal Disputes

To establish a prescriptive easement, your neighbor will need to trespass on your property. To prevent that neighbor from establishing a prescriptive easement, you can just grant permission to use your property in the way the trespasser is already doing. Say the trespassing neighbor parks a vehicle in a spot that encroaches on your property. Just give them permission to do so. That will remove their right to claim a prescriptive easement by voiding the “hostile” element, and could make any later sale of your property easier.

Once an easement has been recognized, you cannot interfere with it. For instance, you can’t suddenly erect a barrier on a road to the public street that runs through your property. You also cannot block a utility company from accessing your property for maintenance or updates. Either action could lead to damages being assessed and a judge ordering you to comply.

On the other hand, if a utility company does need to tear down part of a fence you’ve erected, they should restore the fence to its prior condition after their work is done.

Maintenance Responsibility

Say you do have a common roadway running to a public street that cuts through your property. If the other user, or users, wear It out with potholes or create other problems through overuse or negligence, who is responsible to maintain the road?

California Civil Code Section 845(a) states: “The owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair.” However, section 845(b) goes on to state if the easement is “attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared….” In short, it’s best for all parties to agree in writing to standards of acceptable use and maintenance.

Call The Heritage Law Group for Help

For 40-plus years, our team of real estate attorneys at The Heritage Law Group has been helping clients resolve issues involving boundaries and easements. Our first goal is to resolve everything through negotiation, but if the situation warrants it, we can pursue the proper resolution through litigation.

With offices in San Jose and Aliso Viejo, we serve clients throughout Northern and Southern California. Call us now with your boundary or easement dispute.


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