Law Offices of Graden R. Tapley

Easements and Rights of Way

Sonoma County Easements 
Sonoma County Real Estate Attorneys encounter easement disputes frequently.  Private easements are all over Sonoma County.  Any time the developer did not want to create a public road within a subdivision an easement was created.  Easements exist on the private subdivisions like Sea Ranch and the parcels that were created from breaking up the large rural tracts that once existed all over Sonoma County. 

Easement Defined  
An easement is a limited right to use land not owned by the person using it.  An easement may not be revoked like a “license to use.”  But, an easement can be lost by abandonment or harmed by encroachments.

Creation of Easements
An easement can be created in a number of ways.  The most common of which is by deed.  On the deed the easement is often called a “parcel” as if it were an actual separate plot.  The language will describe the location of the easement and its intended purpose.  Some common purposes are railroads, utilities, roadway, access to water, right of way, and for accessing subterranean mineral rights.  Mineral rights easements are often created when a seller divides a large section of land.  The seller will exclude from the sale any minerals, gas, or oil that is ever found underground, even if none is known to exist at the time of sale.  To get to the discovered oil the seller’s deed is encumbered by an access easement.  Because the possibility that minerals or oil will be discovered is unlikely the buyer does not usually care that the easement is on the title. 

Easement Descriptions
A surface easement will usually describe its size and location on the deed.  This might be done by a description of the metes and bounds or a reference to a parcel map.  For example a non-exclusive easement for access might be described as 200 ft by 40 ft wide running perpendicular to the public road.  Non-exclusive means it is not only for use by the person named on the deed.  The buyer is on notice that another deed may also create rights to use the easement.  Each user has a duty to accommodate the others. 

An Easement’s Purpose Controls Its Size
An easement’s intended purpose as written on the deed helps to define the easement.  The intent can be even more important than the size description.  For example, an easement described on a deed as a “40 ft right of way” for a residential sized lot will be interpreted as intended to allow access to the residence.  But a single residence does not need a forty foot wide driveway.  Because the need is less than what was deeded the actual easement will be less than what was granted.  The easement will only include what is reasonably necessary to get to the house, maybe ten feet wide or even sixteen.  The easement holder will have to accommodate the owner of the land the rest of the forty feet. 

An Easement May Be Lost 
An easement can be lost by abandonment.  While this is not true for a recorded easement it is possible for an easement that is merely established by usage.  It must not used for twenty years and it there must never have been a tax assessment recorded on value of its usage.  Even if the easement is recorded it could still be harmed by prescriptive rights.  Prescriptive rights are rights to land that are established by usage.  They are also called encroachments.    A person who drives across a parcel to access another parcel for five years might establish a legal right to an easement for that usage.  The same goes for usages that are harmful to an easement.    For example, putting a locked gate at the entrance of an easement that the user has to unlock each time.  Or, by narrowing the easement, limiting it to seasonal use, or preventing certain uses such as commercial use.  After time the encroachment becomes a legal right. 

Prevent Prescriptive Rights From Ripening Into An Easement 
One way an owner can prevent others gaining prescriptive rights to land is by posting a signs at each entrance at intervals of not more than two hundred feed reading “right to pass by permission and subject to control of owner.”  The hardware store has copies of these signs.  As long as a usage is by permission prescriptive rights do not ripen.  An owner can also enter into a written agreement with a known user in which it is expressed that usage will not accrue into legal rights.  

Protect Your Land Rights
Whenever land is being used by more than the landowner it is important to know what rights are being established or lost.   Not only is the land subject to the possibility that an easement will be established or eroded, but there are concerns about liability for personal injury that the owner could be responsible for.  Each situation is different.  If you have concerns you should consult an attorney and explain your particular facts. 

From Sebastopol, the Law Offices of Graden Tapley represents clients throughout Sonoma County, including Santa Rosa, Cotati, Healdsburg, Petaluma, Rohnert Park, Santa Rosa, and Windsor.