Access & Property Easement: A Brief Discussion
When real property is bought and sold in California, the actual parcel of ground being conveyed is described in terms of its perimeter boundary. Moreover, the perimeter of the property being bought and sold is described in relation to larger parcels of land previously surveyed and described by the Federal government. These larger parcels, referred to as Townships, are theoretically 6 mile squares, which are further divided into 1 mile squares, called Sections. The subdivision of these Sections can be described in a variety of ways, which can be convoluted in some cases: pages of bearings and distances that will leave the novice reader very confused. In other cases, the legal description can be as simple as, for example: “Lot 7 of Parcel Map 1688, recorded in the County of San Diego, State of California on June 24, 2017.” Ultimately, these legal descriptions define the property being bought and sold in a real estate transaction.
In addition to the legal description defining the perimeter of the property being bought and sold, legal descriptions for other entitlements that come with the property may be incorporated into the legal description. One such entitlement is the documented legal right to access the Subject Property when it not contiguous with a public road, known as an access parcel.
Getting to and from your property is not an issue when your property is contiguous with a public road. However, in rural areas, many property owners access their properties by crossing neighboring parcels. This discussion will focus on the issues involved in accessing private property by traveling across other private property.
The access route traveled across a private parcel of land by a person with implied or documented consent is called an easement. A property easement may vary in purpose. Most people understand easements to be for vehicular ingress and egress. A Property Easement may also serve as utility access, pedestrian/equestrian access, habitat and resource conservation, air space restrictions, encroachment accommodation, in addition to a variety of other purposes.
For the purpose of this discussion, we will consider access easements.
Classifications of Property Easement
An easement may benefit a person or parcel of land. The person or parcel of land that benefits from an easement is referred to as the dominant tenement. When an easement is incorporated into the legal description of a property, the easement is referred to as an easement appurtenant to the Subject Property. This type of property easement “runs with the land” benefitting from the easement.
When an easement has been granted to an individual, the easement is for the benefit of the individual only so long as they are living, unless otherwise stated in the easement document (for example, the easement may state that the easement is for the benefit of the individual and heirs, in which case the entitlement would not terminate upon the death of the original Grantee). An easement of this type is known as an easement in gross. An easement in gross will not appear as an access parcel on the title policy. Instead, it will appear in the list of exceptions to title insurance. Often, these easements will linger as an exception to title insurance long after the individual is deceased, unless arrangements are made for abandoning the easement upon the individual’s passing or within the easement document itself (i.e. “…this easement terminates upon the death of the Grantee…”). Easements of this variety require action to eliminate from title once they terminate.
An easement may also burden a parcel of land, which is referred to as a burdening easement. The parcel of land that is burdened by a property easement is referred to as the servient tenement. As mentioned above, easements may burden a parcel of land in a variety of ways, including: road, pedestrian/equestrian trail, utility, open space, air space, water, mineral, conservation, encroachment, drainage, to name a few of the more common types of easements.
Types of Access
As mentioned, the purpose of this discussion is to focus on easements providing access to and from a specific property. Generally speaking, there are two types of access easements commonly seen in rural real property transactions: implied physical access and documented access.
The limiting factor in a typical real estate transaction is title insurance: meaning that, if a title company will not insure certain material facts about a parcel, lenders will not lend on it. If a lender will not lend on a parcel, fewer buyers are able to purchase the property. When fewer buyers are available to compete for purchasing a property, the result is general a substantial loss of market value. As such, the type of access is a critical factor to consider in a real property transaction where the Subject Property is not served by a public road.
Implied Physical Access
Implied physical access is a situation whereby access across the burdened property has been used openly and notoriously without permission, and constructive notice not to use the access has not been posted for a specified period of time. In California, the period of time required to make a claim for legal, documented access is 5 years. An easement of this nature is referred to as a prescriptive easement. A prescriptive easement is not insurable and is not considered “perfected” or documented until such time a court order deems all of the elements supporting a prescriptive easement have been met and a court order is issued.
Easement by estoppel is another version of implied physical access wherein a seller of a property represents that access to the Subject Property is across the seller’s other property, but no such warranty is in writing.
Easement by necessity is a situation wherein a subdivided parcel was created from a larger parcel, but not left with implied or documented access. As with other forms of undocumented access, easement by necessity establishes the grounds for pursuing documented access, but does not insure a legal entitlement for access until it is documented through deed or litigation.
Most title companies do not insure implied access.
Legal access can be documented in at least 3 ways which are acceptable to most title companies: by a parcel map, a deed, or court order.
Access reserved by Parcel Map can create documented access by dedicating roads to the city or county approving the parcel map, or by reserving easements across private parcels. Access to most urban subdivisions was created in this manner.
Access by deed documents the right granted by the servient tenement for the dominant tenement to traverse the servient tenement property, generally over a specified route. Access created by deed will appear as an access parcelappending the legal description in the title insurance policy.
In situations where access disputes are litigated, courts can order access to be created. Judicial access can be overlooked during a title search, as the access awarded does not show up on a deed, which is primarily where title researchers look for access parcels during a chain of title search. When a court orders access to be granted, the court order must be delivered to, and accepted by the regulating authority for the area in which the parcel is located (city or county) before the title company will insure the parcel.
In all cases of access, the route traveled must be specified (surveyed or otherwise specifically defined) and able to be plotted to scale on a parcel map before most title companies will insure the access. This was a brief explanation of property easements and the different legal details surrounding access to private property. For more information about property easement and other easement related questions, contact us!