UNDERSTANDING EASEMENTS IN CALIFORNIA: PROPERTY RIGHTS THAT CAN AFFECT THE USE OF YOUR HOME

OVERVIEW

An easement is a nonpossessory interest in the land of another that gives its holder the right to use that land for a specific purpose. That simple definition carries enormous consequences for California homeowners. If you own residential property in California, you almost certainly own property that is burdened by, or benefits from, one or more easements. Your title report likely referenced them when you purchased your home. They may allow neighbors to access shared driveways, permit utility companies to run lines across (or under) your property or common areas, restrict what you can build near property lines, or even prevent you from blocking sunlight that reaches someone else’s solar panels.

To be sure, California homeowners encounter easements constantly, whether they realize it or not. Shared walls, private streets, landscaped slopes, drainage systems, recreational trails, utility corridors, and zero lot line construction all depend on easement rights. When disputes arise, they often stem from misunderstandings about who can enter certain property, who must maintain it, and what rights “run with the land.” Because easements are property rights, courts strictly interpret them. Judges are not supposed to expand them beyond their explicitly stated purpose, and they are not supposed to read new rights into vague language. If an easement grants limited access for drainage, the holder cannot convert it into a general right of entry. If it grants passage along a specific strip of land, it does not authorize use of adjacent areas simply because doing so might be convenient.

While the vast majority of easements recognized under California law are “affirmative easements,” which grant a person the legal right to physically use another’s property, the law also recognizes a small subset of “negative easements.” These rarer interests do not allow for the use of land. Instead, they legally prohibit a neighbor from performing certain acts on their own property that would otherwise be perfectly lawful. Solar easements provide a clear example. A properly recorded solar easement can prevent a neighbor from constructing improvements or planting trees that would block sunlight from reaching existing solar panels.

Most easements in California developed through decades of judicial precedent. Courts shaped their elements, defined their limits, and clarified how parties prove or defeat them. At the same time, the Civil Code provides a statutory hook by codifying the basic characteristics of these rights and by establishing formal procedures for their recording and enforcement. In other words, common law explains how most easements arise, while statutory law supplies structure, notice rules, and specific applications.

Homeowners should also understand that while courts recognize many ways to create easements, California statutes address termination more directly. Civil Code section 811, for example, outlines primary methods of extinguishment, including merger of the dominant and servient estates, total destruction of the property, and acts by the easement holder that fundamentally conflict with the nature of the right. Civil Code section 887.040 authorizes property owners to bring an action to establish that an easement has been abandoned and cleared from title. Civil Code section 887.050 further clarifies that for statutory abandonment purposes, an easement is considered out of use if no recorded instrument has mentioned it and no separate property tax assessment has been made on it for a continuous period of 20 years. These rules matter where outdated easements sometimes remain on title long after their practical purpose has faded.

Understanding easements requires more than memorizing definitions. Homeowners must distinguish between express easements created by written agreement, implied easements inferred from prior use, easements by necessity that arise when land becomes landlocked, prescriptive easements earned through long-term adverse use, equitable easements granted to prevent disproportionate hardship, and specialized statutory easements such as conservation, greenway, and solar easements. They must also understand the difference between easements that attach to land itself and those that benefit a particular person or entity, and then disappear when the land is sold.

[While Civil Code section 801 provides an extensive “laundry list” of specific land burdens, ranging from the right to discharge water to the archaic right of a seat in church, these entries represent the various purposes for which an easement may be created rather than the legal methods used to establish them. Consequently, this article focuses on the broader legal classifications, such as prescriptive or implied easements, which dictate how any of the specific rights identified in the Civil Code are actually acquired and enforced.]

EASEMENT DEFINITIONS: SERVIENT AND DOMINANT ESTATES

Before analyzing how easements arise or how courts enforce them, homeowners need to understand the core vocabulary that governs every easement dispute. These terms appear in deeds, title reports, CC&Rs, and court opinions. If you misunderstand them, you misunderstand your rights.

• Servient Tenement (or servient estate). The servient tenement is the property “burdened” by the easement. The servient owner must allow the easement holder to exercise whatever limited right the easement grants. If your neighbor holds a driveway easement that crosses your lot, your property is the servient estate. If a utility company maintains a recorded easement along the back five feet of your yard, your property is the servient estate for that purpose. The servient owner keeps full ownership of the land, but that ownership remains subject to the specific burden described in the easement. The servient owner cannot interfere with the lawful exercise of that right, but the easement holder cannot expand the burden beyond its defined scope.
• Dominant Tenement (or dominant estate). The dominant tenement is the property that “benefits” from the easement. The dominant owner holds the legal right to use the servient property for the specific purpose described in the easement. If your parcel depends on crossing a neighbor’s driveway to reach a public street, your property is the dominant estate. If your lot receives drainage rights across an adjacent parcel, your property is the dominant estate with respect to that drainage easement. These labels do not describe superiority. They describe function. One property bears the burden. The other receives the benefit. In many cases in modern developments, the same homeowner can hold both roles at once. A homeowner may benefit from a shared access easement over common area while simultaneously bearing a utility or maintenance easement across their own lot.
• Appurtenant Easements. An appurtenant easement attaches to the land itself. When that happens, it is said to “run with the land,” meaning the parties’ rights and obligations under the easement automatically transfers to future owners when the dominant or servient properties sell. For example, if Lot A holds a recorded access easement over Lot B, every future owner of Lot A inherits that right. The easement does not depend on who owns the property. It follows the parcel. Most residential easements in California are appurtenant. In HOA developments, for example, cross-easements for access, drainage, utilities, and shared structures typically attach to the lots and pass automatically with title.
• Easements in Gross. An easement in gross benefits a specific person or entity rather than a specific parcel of land. The right belongs to the holder, not to a dominant estate. Utility easements often fall into this category. Unlike appurtenant easements, easements in gross do not automatically transfer with the sale of nearby property unless the instrument expressly provides for transfer. Understanding the difference between appurtenant and in gross easements matters because many disputes turn on the answer to that question.
• Strict Construction Easements. Courts strictly construe easements. Judges interpret them narrowly according to their language and purpose. They do not enlarge the burden on the servient estate simply because expanded use would seem reasonable or efficient. If an easement grants access for maintenance, the dominant owner cannot convert it into general recreational access. If it authorizes foot traffic along a defined path, it does not automatically authorize vehicle traffic or expansion beyond the described strip of land. This principle protects property owners from incremental expansion of burdens over time. It also protects easement holders by preserving the precise rights they bargained for or legally acquired.
• Grantor and Grantee. The grantor is the person or entity who is burdened by the easement (i.e., the owner of the servient estate). The grantee is the person or entity who receives the benefit of the easement (i.e., the owner of the dominant estate).

Now that the key terminology is clear, the next question is functional: what does an easement permit someone to do (or not do).

AFFIRMATIVE & NEGATIVE EASEMENTS: WHAT YOU SHOULD UNDERSTAND

Before breaking down the different legal methods used to create easements, homeowners must understand a foundational distinction: the difference between affirmative easements and negative easements. This classification does not depend on how the easement arose. Instead, it describes what the easement allows the holder to do.

Affirmative Easements

An affirmative easement grants the holder the right to enter or perform a specific act on another person’s land. Most easements in California fall into this category. Common examples include:

• A driveway easement that allows one neighbor to cross another neighbor’s property to reach a public street.
• A utility easement that permits an electric company to install and maintain power lines.
• A drainage easement that allows water to flow across a particular portion of land.
• A slope or access easement within an HOA that allows maintenance crews to enter otherwise private areas for repairs.

Each of these easements authorizes physical use of the servient property for a defined purpose. The holder cannot expand that purpose simply because doing so would be convenient. If the easement grants access for maintenance, it does not automatically permit recreational use. If it allows passage by foot, it does not necessarily permit vehicle traffic.

In HOA-governed communities, affirmative easements often appear in the CC&Rs. Developers typically create cross-easements for utilities, shared walls, private roads, landscaping access, and drainage systems. When homeowners purchase property in these developments, they take title subject to those recorded burdens. That is why title reports routinely list easements as exceptions.

Regardless of what kind of community you live in, courts strictly construe affirmative easements. Judges look to the language of the instrument, the historical use, and the specific purpose described. They do not broaden the right beyond what the parties created.

Negative Easements

Negative easements operate differently, and they’re actually quite rare. They do not grant the holder the right to enter another’s property. Instead, they give the holder the power to prevent the servient owner from doing something on their own land.

The most prominent modern example in California is the solar easement, governed by Civil Code section 801.5. A properly recorded solar easement can restrict a neighboring property owner from constructing improvements or planting vegetation that would block sunlight within defined vertical and horizontal angles. The easement must describe those angles with specificity. In practical terms, a recorded solar easement could legally prevent a neighbor from building a second-story addition or planting a fast-growing Sequoia tree if doing so would interfere with the protected solar access.

Unlike affirmative easements, negative easements function as restrictions. They prohibit conduct rather than authorize entry. That distinction matters when homeowners evaluate their rights. If someone claims they hold an easement, the first question should be simple: does this easement allow them to use my land, or does it limit what I can do on my own land?

Understanding that difference sets the stage for the more complex question that follows: how did the easement come into existence in the first place? In California, the method of creation determines the elements required to prove an easement, the defenses available to challenge it, and in some cases, the rules governing its termination.

TYPES OF EASEMENTS IN CALIFORNIA AND HOW THEY’RE CREATED

After understanding the difference between affirmative and negative easements, the next critical question is straightforward: what kind of easement are we dealing with?

Each category of easement serves a distinct legal function, and courts treat them accordingly. Each type of easement, in fact, has its own required elements, each demands a specific type of proof, and each carries different consequences for both the servient and dominant estates.

When disputes arise between neighbors (or between homeowners and their HOAs), the first step is identifying which category applies. Without that step, it is impossible to determine whether a valid easement exists at all. Generally speaking, California courts recognize nine different types of easements:

1. Express easements.
2. Implied easements.
3. Easements by necessity.
4. Prescriptive easements.
5. Easements by estoppel.
6. Conservation easements.
7. Equitable easements.
8. Greenway easements.
9. Solar easements.

[California law also recognizes a handful of less frequently litigated easement doctrines, including party wall easements, which allow adjoining property owners to share a common wall or structural element, and easements by custom, a rare common law concept that can arise where long-standing, community-wide use of land establishes a legally protected right to continued use. These doctrines appear far less often than the primary categories discussed above, but they illustrate the flexibility of easement law. Those doctrines fall outside the scope of this article and will not be addressed further.]

1. Express Easements

Express easements are the most common and the most straightforward type of easement recognized under California law.

Because an easement is a property right, the law requires it to be in writing. This requirement comes from a legal doctrine called the statute of frauds, which requires that agreements affecting ownership interests in land must be written down and signed in order to be enforceable. This means that subject to some limited exceptions recognized by courts, you cannot create a permanent easement through a casual verbal promise. The writing requirement protects both sides by clearly defining the scope of the easement and by allowing it to be recorded so future purchasers receive constructive notice. [Constructive notice means that once a document is properly recorded in the public land records, the law treats everyone as if they know about it, even if they never actually read it.]

To create a valid express easement, four things must be present:

• A written document.
• A clear description of the property affected.
• The signature of the owner whose property will be burdened.
• Language that clearly shows the intent to create an easement.

If the document does not clearly show that the parties intended to create an easement, a court will not stretch the language to invent one. Courts interpret easements narrowly. They enforce the right that was granted, not the right one party later wishes had been granted.

• Example of an Express Easement. A homeowner buys a house and later wants to add a fence along the side yard. The title report lists a recorded utility easement running along the side of the lot. The easement allows the utility company to access and maintain underground lines. If the homeowner builds a solid block wall or plants dense trees inside that easement area, the utility company can require the homeowner to remove the obstruction so it can reach the lines. The homeowner still owns the land, but the recorded express easement limits how the homeowner can use that strip because the easement gives the utility company a defined access right.
• Easement by Reservation. There is something called an “easement by reservation,” which is a type of express easement. Easements by reservation are created when a property owner sells part of their land but keeps the right to use a portion of the part they just sold. The easement appears directly in the deed that transfers ownership. The seller conveys the property but reserves a limited use right for themselves. [For example, imagine a homeowner who owns a large parcel and decides to sell the back half. The only driveway that connects the front home to the street runs along the edge of the back parcel. When the homeowner sells the back portion, they include language in the deed reserving a driveway easement across that strip of land. Years later, the new owner of the back parcel objects to the continued use of the driveway. The outcome does not depend on fairness. It depends on the deed. If the deed clearly reserves the easement, the court will enforce it.]

2. Implied Easements

Unlike express easements, implied easements do not appear in a written document. Courts recognize them because the surrounding circumstances show that the parties must have intended the easement to continue, even though no one wrote it down.

Implied easements usually arise when someone divides one parcel of land into two separate parcels. Before the split, the original owner may have used one part of the land to benefit another part. After the split, that prior use may become legally protected if certain conditions are met.

To establish an implied easement, three elements must exist:

• The two parcels were once under common ownership.
• Before the land was divided, the use was apparent and continuous.
• The easement is reasonably necessary for the use and enjoyment of the benefited property.

“Apparent” does not mean obvious to a casual passerby. It means the use was visible or discoverable upon reasonable inspection. “Continuous” means the use occurred regularly, not as a one-time event.

“Reasonably necessary” does not mean absolutely essential. Courts do not require total landlock. Instead, the claimant must show that without the easement, the property cannot function in the manner the parties likely expected when they divided the land.

Courts imply these easements to prevent unfair results when a property division would otherwise disrupt long-standing, obvious uses that both parties understood would continue.

• Example of an Implied Easement. Imagine a homeowner who owns a large parcel with a detached garage located near the rear boundary. The only way to reach the garage is by driving across a paved strip that runs along what will become the neighboring parcel. The owner later sells the front half of the property but says nothing about the driveway. After the sale, the new front-lot owner objects to the continued use of the paved strip. If the driveway existed before the division, was visible and regularly used, and remains reasonably necessary to access the garage, a court may recognize an implied easement allowing the rear-lot owner to continue using that path. No written easement exists. The court implies it from the circumstances surrounding the division of the land. Implied easements reflect the practical reality that people do not always reduce every detail to writing when they subdivide property. The law fills that gap when fairness and prior use justify doing so.

3. Easements by Necessity

An easement by necessity is a specific subset of implied easements. It arises when a property becomes completely landlocked and has no legal access to a public road. Courts recognize this type of easement because the law does not favor creating parcels that cannot be accessed or used. But the standard is strict.

To establish an easement by necessity, the claimant must prove:

• The dominant and servient parcels were once under common ownership.
• The conveyance that divided the property created the necessity.
• The property has no other legal access to a public road.

This doctrine requires strict necessity. Convenience does not qualify. A longer route, a steeper route, or a more expensive route does not create an easement by necessity. The claimant must show that without the easement, the property has no legal means of access at all.

Unlike other easements, an easement by necessity lasts only as long as the necessity exists. If circumstances change and legal access becomes available through another route at some later date, the easement automatically terminates.

• Example of an Easement by Necessity. Imagine a landowner who owns a large tract that connects to a public road. The owner sells the rear portion of the land but fails to provide any access route in the deed. After the sale, the rear parcel sits entirely surrounded by other private property and has no connection to a public street. Because the original division of the land created the landlocked condition, a court will recognize an easement by necessity across the remaining parcel so the rear owner can reach the road. But, if the county later builds a new public road that borders the rear parcel, the necessity disappears. At that point, the easement by necessity will terminate automatically.

4. Prescriptive Easements

While a prescriptive easement resembles a legal doctrine called “adverse possession,” it does not transfer ownership of the property like adverse possession does. Instead, it gives the user a permanent right to continue using someone else’s land. [The doctrine of adverse possession transfers legal title to the property itself. To acquire title through adverse possession in California, the claimant must prove open, notorious, continuous, hostile possession for five years and must also pay the property taxes assessed on the land during that five-year period. That tax payment requirement makes adverse possession extremely difficult to prove. Most claimants fail because they cannot show that they paid taxes on the disputed strip of land. For that reason, prescriptive easements often function as a “lighter” version of adverse possession. The claimant does not gain ownership but may gain a permanent right to continue the use.]

To establish a prescriptive easement in California, the claimant must prove that their use of the property was:

• Open and notorious.
• Continuous and uninterrupted for at least five years.
• Hostile and adverse to the true owner, meaning without permission.
• Under a claim of right.

“Open and notorious” means that the use was visible and obvious enough that a reasonable property owner would have noticed it. Secret or hidden use does not qualify. “Continuous” does not require daily use, but it must occur with regularity consistent with the type of use at issue. “Hostile” does not mean aggressive or confrontational. It means only that the user did not have permission. If the property owner grants permission, the use cannot ripen into a prescriptive right. The “claim of right” requirement means the user acts (to the public) as if they have the right to use the property. The user does not need to prove they had a written right. They must show that they treated the use as their own and did not ask for approval.

• Example of a Prescriptive Easement. Imagine a homeowner who regularly drives across a narrow strip of a neighbor’s property to reach a side entrance to their home. The homeowner does this openly, without asking permission, and continues the practice for more than five years. The neighbor sees the use but never objects. If the use meets the legal elements, a court may recognize a prescriptive easement allowing the continued use of that strip for access, even though the homeowner does not own the land.

5. Easements by Estoppel

This is an equitable remedy where a court prevents a landowner from denying an easement because the other party has reasonably relied on the owner’s representations. This type of easement does not depend on the existence of a written document. Instead, it focuses on representations and reliance. To establish an easement by estoppel, the claimant must prove that:

• The owner of the servient estate permitted the claimant to believe that an easement existed.
• The claimant relied on that belief to their detriment.

“Permitted” can include express statements, conduct, or silence in circumstances where a reasonable person would speak up. “Detrimental reliance” usually means the claimant spent significant money, constructed improvements, or materially changed their position based on the belief that the easement existed.

Courts apply this doctrine cautiously. Property rights matter, and judges do not create easements lightly. But when one party reasonably relies on another’s representations and would suffer substantial loss if the right were denied, a court may prevent the servient owner from withdrawing the permission.

• Example of an Easement by Estoppel. Imagine a homeowner who tells a neighbor, “You can run your water line across my yard anytime,” and watches while the neighbor installs underground piping at considerable expense. Later, after the installation is complete, the homeowner attempts to revoke permission and demands removal of the line. If the neighbor reasonably relied on the original assurance and invested substantial funds in the installation, a court may recognize an easement by estoppel and prevent the homeowner from denying the continued use.

6. Conservation Easements

A conservation easement is a voluntary agreement that permanently restricts the use of land to protect natural, scenic, agricultural, or historical resources. Conservation easements are actually governed by statute. Specifically, Civil Code section 815 describes the necessary requirements to establish a conservation easement.

Unlike many other easements, conservation easements must be granted in perpetuity. The landowner agrees to limit development or certain uses of the property forever. The easement does not expire when the property changes hands.

Only qualified entities may hold conservation easements. These include tax-exempt nonprofit organizations, government entities, and certain public agencies. The easement holder monitors the property and enforces the agreed-upon restrictions.

A conservation easement does not transfer ownership of the land. The owner retains title. However, the easement limits how the land may be used. For example, the owner may agree not to subdivide the property, construct additional buildings, or alter natural features.

• Example of a Conservation Easement. Santa Catalina Island is a good example. Approximately 88% of Catalina Island (roughly 42,000 of its approximately 48,000 acres) is protected under a conservation easement. The Catalina Island Conservancy, established after the Wrigley family gifted large portions of Catalina Island, operates under conservation principles consistent with Civil Code section 815. The land covered under the easement remains privately held for conservation purposes, and the governing restrictions protect its natural and scenic resources in perpetuity while limiting development.

7. Equitable Easements

An equitable easement may be granted by a court when strict legal requirements for other types of easements are not met, but fairness dictates that an easement should exist. [Although an equitable easement sounds a lot like an easement by estoppel, they’re different. It’s true that they’re both grounded in fairness. But, unlike easements by estoppel, which focus on reliance induced by representations, equitable easements focus on disproportionate hardships in cases where no other formal doctrine exists.]

To obtain an equitable easement, the claimant must prove that:

• The trespass was innocent rather than willful or negligent.
• Granting the easement will not cause irreparable injury to the servient owner.
• The hardship to the claimant from denying the easement would be greatly disproportionate to the hardship to the servient owner from granting it.

“Innocent” means the claimant did not knowingly build or use the land in violation of known boundaries. Courts deny relief if the claimant acted recklessly or intentionally ignored survey lines. The court also weighs the practical consequences. If removing an encroachment would cause extreme hardship to the claimant while granting a limited easement would cause minimal harm to the servient owner, a court may impose an equitable easement.

Courts resolve doubts against granting equitable easements. The claimant must present strong evidence that justice requires the remedy.

• Example of an Equitable Easement. Imagine a homeowner who builds a garage based on a mistaken boundary line shown on an outdated survey. After construction, a new survey reveals that a small corner of the garage extends two feet onto the neighbor’s property. The encroachment was not intentional, and removing the structure would require demolishing most of the garage at enormous expense. If the encroachment causes minimal practical harm to the neighbor, a court might grant an equitable easement allowing the structure to remain in exchange for compensation, rather than ordering complete removal.

8. Greenway Easements

Greenway easements are a specific type of conservation-oriented easement governed by Civil Code section 816.56 et seq. The Legislature designed these easements to preserve or enhance land for greenway purposes, typically in urban areas. A greenway easement allows land to be used or restricted to support pedestrian paths, bicycle routes, recreational corridors, or open space areas located along urban waterways.

Like conservation easements, greenway easements must be voluntarily conveyed. A property owner must agree to grant the easement. The law does not impose these rights unilaterally.

Only qualified entities may hold greenway easements. These include tax-exempt nonprofit organizations, government entities, and Native American tribes. Private individuals cannot hold them for personal benefit. A greenway easement does not transfer ownership of the land. The owner retains title, but the easement restricts development or use to preserve the greenway purpose identified in the agreement.

• Example of a Greenway Easement. Imagine a property owner whose land borders a river running through a developed urban area. A nonprofit conservation organization approaches the owner and proposes creating a continuous pedestrian and bicycle corridor along the riverbank. The owner agrees to grant a recorded greenway easement that preserves a strip of land along the water for trail use and prohibits future development that would block the corridor. The owner keeps title to the land, but the easement permanently protects the greenway.

9. Solar Easements

Solar easements are a clear example of a negative easement. Instead of allowing someone to enter another person’s property, a solar easement restricts what the servient owner may do on their own land. Civil Code section 801.5 governs solar easements in California. The statute requires that a solar easement be in writing and specifically describe the vertical and horizontal angles at which sunlight must remain unobstructed. The easement must clearly define the dimensions of the protected sunlight corridor.

Because a solar easement restricts development rights, it must describe the protected airspace with precision. Vague language will not suffice. The recorded document must identify the height and angle limits that the servient owner must respect.

Unlike most other easements discussed in this article, a solar easement does not grant a right of entry. Instead, it gives the holder the right to prevent the servient owner from blocking the defined sunlight path.

• Example of a Solar Easement. Imagine a homeowner who installs roof-mounted solar panels and approaches a neighbor and offers to pay the neighbor in exchange for agreeing to a solar easement. The neighbor accepts, and the homeowner records a solar easement with the neighbor to the south. The easement specifies that no structure or vegetation may obstruct sunlight within defined vertical and horizontal angles between certain hours of the day. Years later, the neighbor decides to build a second-story addition or plant a fast-growing Sequoia tree that would cast a shadow into the protected zone. If the recorded easement clearly defines the protected angles, the homeowner may enforce it and prevent the obstruction.

HOW EASEMENTS END IN CALIFORNIA: TERMINATION & ABANDONMENT

Creating an easement is only half the story. Easements can also end. When they do, they no longer burden the servient property, and the dominant estate loses the right of use. While courts developed most easement doctrines through common law, some California statutes address termination directly.

Termination Under Civil Code Section 811

Civil Code section 811, for example, outlines the primary ways that an easement can terminate, including through:

• Merger. If one person acquires both the dominant and servient estates, the easement terminates because a person cannot hold an easement over their own property.
• Total destruction of the property. If the subject of the easement no longer exists, the easement may terminate.
• An act fundamentally incompatible with the easement. If the easement holder performs an act that conflicts with the continued existence or exercise of the right, the law may treat that conduct as termination.

Termination can also occur by operation of law in the case of prescriptive easements. Civil Code section 811(4), for example, provides that a prescriptive easement automatically extinguishes if the dominant tenement does not use it for a continuous period of five years. In that situation, the law does not require proof of intent. Non-use alone ends the right.

These statutory rules operate independently of abandonment. They focus on legal events that extinguish the easement without requiring a separate showing of intent to relinquish the right.

Abandonment of Easement: The High Evidentiary Standard

Abandonment requires a different analysis. Courts disfavor forfeiture of property rights and impose a high evidentiary burden before declaring that an easement has been abandoned.

For express or implied easements, mere non-use does not terminate the right, no matter how long the inactivity continues. The party seeking termination must prove clear and convincing evidence that the easement holder intended to permanently relinquish the easement.

With that in mind, courts will evaluate abandonment using the following principles:

• Intent. The evidence must show that the holder intended to abandon the easement permanently.
• Incompatible physical acts. Courts often look for conduct that makes future use impossible or fundamentally inconsistent with continued exercise of the right. Permanent physical changes that eliminate the ability to use the easement can serve as evidence of intent.
• Prescriptive easement exception. As discussed above, prescriptive easements follow a different rule. If the dominant tenement fails to use the prescriptive easement for five continuous years, Civil Code section 811(4) extinguishes it automatically without proof of intent.

In addition, Civil Code section 887.040 authorizes a property owner to file a legal action asking a court to declare that an easement has been abandoned and cleared from title. This statute provides a formal procedure for resolving disputes over stale or unused easements that still appear in the public record. Civil Code section 887.050 further clarifies an important evidentiary rule of statutory abandonment claims. For purposes of a statutory abandonment claim, the law considers an easement “out of use” if no recorded instrument has mentioned it and no separate property tax assessment has been made on it for a continuous period of 20 years.

When evaluating whether an easement has ended, the first step is identifying the type of easement at issue. The rules governing termination and abandonment differ depending on how the easement arose. Courts do not erase property rights casually, and the burden rests on the party asserting that the easement no longer exists.

APPURTENANT & IN GROSS EASEMENTS

Regardless of how an easement arises or how it ends, every easement falls into one of two functional categories: appurtenant or in gross. This distinction does not describe how the easement was created. It describes who benefits from it.

• Appurtenant Easements. An appurtenant easement attaches to a specific parcel of land. It benefits the dominant estate itself, not a particular individual. When the dominant property sells, the easement automatically transfers to the new owner because it runs with the land. Most residential easements are appurtenant. A recorded driveway easement benefiting Lot A over Lot B follows Lot A even if the property changes hands multiple times. The right belongs to the parcel, not to the person who first acquired it. [Warning: While recording an easement is not technically required for an easement to be appurtenant or to run with the land, failure to do so could result in a loss of the easement rights. An implied or prescriptive easement can attach to a parcel even without a written document. However, recording is critical because it provides constructive notice to later purchasers. If the owner of the servient property sells to a buyer who qualifies as a bona fide purchaser without notice of an unrecorded easement, that buyer takes title free of the easement. In that situation, the easement is extinguished as to that property, and recording it after the sale would not revive it for future owners. That’s why it’s so important for the holders of the dominant tenements to always record their written easements.] Because appurtenant easements run with the land, buyers take title subject to both the benefits and the burdens reflected in the public record.
• Easements in Gross. An easement in gross benefits a person or entity rather than a specific parcel of land. The right belongs to the holder, not to a dominant estate. Utility easements are common examples. An electric company may hold an easement allowing it to install and maintain equipment across private property. That right does not benefit a neighboring parcel. It benefits the utility provider itself.

Unlike appurtenant easements, easements in gross do not automatically transfer when nearby property sells unless the agreement/easement itself specifically allows assignment. Understanding this distinction matters because it affects transferability and enforcement. If an easement attaches to land, it likely continues with each sale. If it exists in gross, it may depend entirely on the identity of the holder and the language of the granting document.

CONCLUDING THOUGHT

Easements are not technical footnotes buried in old deeds. They are real property rights that shape how land can be used, accessed, developed, and enforced. They can allow someone to cross your property, restrict what you can build, preserve open space, protect sunlight, or permanently burden a strip of land that appears to be “yours.” They can arise through written agreements, long-standing use, necessity, reliance, or court-imposed equity. And they can end through merger, statutory extinguishment, or proven abandonment.

Because courts strictly construe easements, the precise language, history, and category matter. Because recording rules protect bona fide purchasers, failure to properly document rights can permanently destroy them. Because termination standards vary depending on how the easement arose, homeowners must identify the type before asserting that it still exists (or doesn’t).

Most homeowners do not think about easements until a dispute forces them to. By then, misunderstandings about dominant and servient estates, recording, necessity, prescription, or abandonment can escalate into expensive litigation. The better approach is to understand what burdens and benefits attach to your property before conflict arises.

If you are facing a dispute over access, use restrictions, boundary encroachments, solar obstruction, or the validity of a claimed easement, call us at MBK Chapman. We have deep expertise in California’s easement laws and can advise you, or if necessary, fight for you in court.