A Client-Focused Approach to Business and Real Estate Law

Real estate can come with unwritten deal-breaker easements

Easements rarely appear in detective novels or TV crime shows, and many people’s minds visibly drift at the mention of this legal concept. But easements have fundamental impacts on the daily lives of almost all Americans and sometimes raise ferocious passions.

Buyers of commercial or private properties might skim them as formalities in the title papers. But in some cases, notably when it comes to “prescriptive easements,” taking your eye off the wrong details of a real estate purchase can bring on an expensive and unpleasant fight over an easement.

What is an easement?

Easements are rights that a person has over the property of another. They entitle someone to exercise their interests over land they do not own.

For example, sewer, water or gas lines may run through land that you own, but they probably belong to a local government or utility company and you likely have no right to interfere with them. This is one reason you must often ask for a permit to dig or build on your property.

Prescriptive easements can develop by custom over time

Some rights over part of another person’s land can be just as legal and enforceable as the gas company’s but exist without anyone signing papers. For example, if a neighbor (or neighboring business) must cross your property to get to their own, this “easement by necessity” is typically a legally enforceable right.

And, like the doctrine of adverse possession (also known as “squatter’s rights”), a person can develop certain kinds of rights over someone else’s land gradually and informally by exercising them regularly over the years. The community at large can develop such a “prescriptive easement” by regularly relying on it from day to day for a long enough time.

California beach may stay open over the owner’s objections

In a vivid example of a claim of a prescriptive easement, the California Attorney General’s office sued a Silicon Valley billionaire. The mogul bought the land around Martins Beach, long a landmark about 30 miles south of San Francisco. He then began trying to close public access to the attraction.

In hopes of arguing the community has established a prescriptive easement, the Attorney General (on behalf of the state Coastal Commission and Lands Commission) is gathering evidence that the community has long freely used the beach. The billionaire, in turn, has now sued the county sheriff, arguing that failing to cite, remove or arrest trespassers violates his 14th Amendment right to equal protection under the law.