California Easements: Implied Road Easements

There’s hardly a property in San Diego’s rural East County that doesn’t have problems with road easements, either easements across the property to access a neighbor’s or across a neighbor’s to access the property. What happens if a neighbor doesn’t use a recorded easement across your property for a number of years? Or doesn’t use the entire easement? In Cottonwood Duplexes, LLC v. Barlow, a 2012 decision from the California Court of Appeal, the neighbor used only 32’ of a 60’ recorded easement to access his property. The owner of the property burdened by the easement asked the court to permanently reduce the width of the easement to 32’ so he could develop the property. The trial court did so, finding that because of changes in the properties over the years “the reasonable use requirements” of the neighbor’s property “both presently and in the future do not require the full size and scope” of the easement. The appellate court reversed, holding that an easement is a property right and cannot be reduced in size without the consent of the owner of the easement. Cottonwood Duplexes, LLC v. Barlow, 210 Cal.App.4th 1501 (2012).

Contrast this with a recent case in which the court essentially moved an easement from one location to another to make it easier for a neighbor to access his property over a large tract of mountainous land in Santa Barbara County. In Linthicum v. Butterfield the neighbor had a recorded easement for a road but didn’t use it. Instead, for many years he used another route over which he did not have a recorded easement because it was more convenient. The California Court of Appeal affirmed an “equitable” easement to the neighbor over the road he used, finding that construction of a road on the recorded easement would involve significant engineering problems and possibly insurmountable governmental hurdles. The court dismissed the property owner’s arguments that the neighbor did not satisfy the requirements for an “equitable” easement because he had alternative access and that permitting the new road would prevent the property owner from developing his property. Linthicum v. Butterfield, 175 Cal.App.4th 259 (2009).

In Tashakori v. Lakis the appellate court went even further, granting an equitable easement to a neighbor’s land-locked parcel where there had been no significant use of the road across the owner’s property. The court held the neighbor would suffer irreparable injury because denial of an equitable easement would make his property unbuildable. Tashakori v. Lakis, 196 Cal.App.4th 1003 (2011).

So, the lesson here, in California courts are not willing to eliminate or reduce express (recorded) easements, but are more and more willing to find equitable easements for access to property where non before existed.

June 2014