Easements can be created in many different ways, including by contract, conveyance, statute, or in equity (prescription, necessity, implied, equity). 


  1. Are the resulting lots consistent with the County’s General Plan?
  2. Are the resulting lots consisting with the Zoning for that area (i.e., minimum lot size) ?
  3. Are the topography and other site conditions suitable for development of each new lot?
  4. Are there geological hazards (i.e., faults or landslides) that would prevent the development of any of the new lots?
  5. Are all of the new lots usable – meet County design and density requirements?
  6. Are access requirements, set by the Fire Department and Public Works, met?
  7. Are the water requirements (adequacy, quality and pressure) enough to meet Fire Department and Public Works concerns?
  8. Is there access to a sewer system for each new lot and if not, can septic requirements be met?

Legal Lot – Certificate of Compliance

To develop your property, you will be required to establish it is a legal lot. When you have established the legality, you will be issued a Certificate of Compliance.

A Certificate of Compliance is a legal document which certifies that a parcel of land complies with the Subdivision Map Act. It is a document that states your local government accepts the fact that a particular parcel of real property has been legally created.

There are a number of different ways to subdivide real property. The most common way is by tract map, parcel map, or parcel map waiver.  However, many parcels were created long before these three (3) processes became widely accepted. Generally, if a parcel was created without using one (1) of these processes, yet was created prior to March 4, 1972, it is considered to be legally created. A Certificate of Compliance is the tool used by the County to inform title companies, lenders, and the general public that such parcels comply with state and local subdivision laws.



Conditions to development require a showing that the condition has a nexus to the proposed development.

In Koontz v St Johns River Water (2013),  133 S.Ct. 2586, the U.S. Supreme Court held that a government may only condition approval of land-use permits based on conditions that have a nexus to the land use and are approximately proportional to the effects of the proposed land use. 

It must be determined whether an “essential nexus” exists between a legitimate state interest and the permit condition. Nollan v California Coastal Comm’n483 U.S. 825837

If one does, then it must be decided whether the degree of the exactions demanded by the permit conditions bears the required relationship to the projected impact of the proposed development. Nollan v California Coastal Comm’n483 U.S. 825, 834 


Creating Easements

Easements can be created in many different ways, including by contract, conveyance, statute, or in equity (prescription, necessity, implied, equitable). 

General Rules

— Right to Use property of another – subject to terms of grant.

— Most easements run with the land (appurtenant).

— Easement is a non-possessory restricted right that is less than ownership.

— Easement holder (dominant tenement) cannot transfer easement to third party.

— 99% of easements are non-exclusive.

— Land owner(servient tenement) retains all rights not granted away.

— Land owner can continue to use the easement and can grant to others.

— Land owner cannot prevent use by easement holder.

Legal Basis
Easements in Equity
  • Prescriptive Easements

— Use is open and notorious. Generally, “open” means that the use is not made secretly or that it is visible or apparent; “notorious” means that the owner knows of the use or the use is widely known in the neighborhood. This requirement is met if the owner has actual or constructive notice of the use. Connolly v McDermott (1984) 162 CA3d 973, 977. 

— Use is continuous and uninterrupted. The use must be continuous during the prescriptive period; however, this does not mean constant physical use. Seasonal, intermittent, or changing use may satisfy the continuity requirement. Twin Peaks Land Co. v Briggs (1982) 130 CA3d 587, 593. 

—  Use is hostile, under claim of right, or adverse to true owner.

These three terms are used interchangeably. Aaron v Dunham (2006) 137 CA4th 1244, 1252.

The use of the easement must be without the landowner’s consent. Richmond Ramblers Motorcycle Club v Western Title Guar. Co. (1975) 47 CA3d 747, 754. This use does not require a belief or claim that the use is legally justified, but simply that the property was used without either express or implied permission of the landowner. Felgenhauer v Soni (2004) 121 CA4th 445, 450.

When no express permission has been given, a court may infer from all of the facts and circumstances that implied permission was given as a matter of “neighborly accommodation.” Warsaw v Chicago Metallic Ceilings, Inc. (1984) 35 C3d 564, 572; Finley v Botto (1958) 161 CA2d 614, 618. 

— Use is for statutory period.

The use must continue for a period of 5 years. CCP §321; CC §1007; Silacci v Abramson (1996) 45 CA4th 558, 563.

For purposes of computing the 5-year period, the claimant of the prescriptive easement may “tack” together periods of use by the claimant’s predecessor in interest and by tenants of the claimant or of the claimant’s predecessor in interest. Zimmer v Dykstra (1974) 39 CA3d 422, 432. 


To find an easement by necessity, there must be:

— Prior common ownership of the subject parcels; and 

— A strict necessity of need for ingress and egress There is a statutory right to an easement by necessity for utilities under CC §1001 and CCP §1245.325.


Landlocked parcels may obtain an implied easement for access based on:

—Prior use (CC §1104; Navarro v Paulley (1944) 66 CA2d 827, 829); 

—Reference to existing maps and boundaries (Tract Dev. Servs., Inc. v Kepler (1988) 199 CA3d 1374); or 

— Necessity (Hewitt v Meaney (1986) 181 CA3d 361). Prior use (CC §1104; Navarro v Paulley (1944) 66 CA2d 827, 829). 


— The equitable easement doctrine evolved to give courts discretion to balance hardships in neighbor disputes over the use of property, and it can be used when a party cannot satisfy all the elements for an actual or prescriptive easement. 

— To grant an equitable easement, three factors must be present:

“First, the [encroacher] must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. 

“Second, unless the rights of the public would be harmed, the court should [stop the encroachment] if the [burdened landowner] ‘will suffer irreparable injury … regardless of the injury to [the encroacher].’ 

“Third, the hardship to the [encroacher] from [ordering removal of the encroachment] [‘]must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.’”  

“Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement.”‘” [Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1027-1028.] While all three elements of an equitable easement are necessary, the “willful or negligent” element is “paramount.” (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 769.) 


— There is no common law right to air, light, or an unobstructed view. Payment of a premium for a home with a view does not give rise to an easement. One pays for a view without buying it. Katcher v Home Savs. & Loan Ass’n (1966) 245 CA2d 425, 429.

— Blockage of light to a neighbor’s property, except in cases when malice is the overriding motive, does not constitute actionable nuisance, regardless of the impact on the injured party’s property or person. Sher v Leiderman (1986) 181 CA3d 867, 875.

—View rights may be established by private agreement or by local ordinance. See Echevarrieta v City of Rancho Palos Verdes (2001) 86 CA4th 472; Kucera v Lizza (1997) 59 CA4th 1141.


An encroachment into an easement that prevents it use for the intended purpose is actionable. Boundary and encroachment disputes often arise over fences, hedges, structures, walkways, driveways, walls, landscaping, and other improvements when they are placed at a location other than the true property boundary.

Sometimes no one is aware that an apparent boundary is incorrect until one property owner decides to replace or construct improvements near the perceived boundary.

An easement is a right to make limited use of property belonging to another. Main St. Plaza v Cartwright & Main, LLC (2011) 194 CA4th 1044, 1053. 


· CC §§801–813 contain the basic statutory definitions of easements and the basic statutory rights and duties created by easements.  

· CC §§840–849 cover the easement owner’s obligations. 

· CC §1002 describes the private right of eminent domain.  

· CC §1008 describes posting a notice of permissive use to prevent ripening of prescriptive rights.  

· CC §1009 limits liability of private owners who make land available for public use.  

· CC §1624 is the Statute of Frauds.  

· CCP §§321–325 contain the relevant statutes of limitations. 

Equitable Easements

[T]he California courts have had the discretionary authority to deny a landowner’s request to eject a trespasser and instead force the landowner to accept damages as compensation for the judicial creation of an easement over the trespassed-upon property in the trespasser’s favor, provided that the trespasser shows that:

 (1) her trespass was “ ‘innocent’ ” rather than “ ‘willful or negligent,’ ”

(2) the public or the property owner will not be “ ‘ “irreparabl[y] injur[ed]” ’ ” by the easement, and

(3) the hardship to the trespasser from having to cease the trespass is “ ‘ “greatly disproportionate to the hardship caused [the owner] by the continuance of the encroachment.” ’ ” [Citations.]

Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement…. Shoen v. Zacarias (2015) 237 Cal.App.4th 16.

The court of appeal explained that an equitable easement required more than a simple balancing of hardships. Rather, the hardship to the plaintiff must be greatly disproportionate to the hardship that would be suffered by the defendant, as in cases where trespassers who would otherwise be forced to move buildings or be airlifted to their landlocked property held. 

Recent Decision:

RANCH AT THE FALLS LLC v. O’NEAL (2019) 38 Cal. App. 5th 155:

“The law on equitable easements is well explained in Shoen v. Zacarias (2015) 237 Cal.App.4th 16 [187 Cal.Rptr.3d 560] (Shoen).

“There are three requirements, described in terms of the landowner and the trespasser. Judicial creation of an easement over a landowner’s property is permissible “provided that the trespasser shows that (1) her trespass was `”innocent”‘ rather than `”willful or negligent,”‘ (2) the public or the property owner will not be `”`irreparabl[y] injur[ed]'”‘ by the easement, and (3) the hardship to the trespasser from having to cease the trespass is `”`greatly disproportionate to the hardship caused [the owner] by the continuance of the encroachment.'”‘ [Citations.] Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement.” (Id. at p. 19; see id. at p. 21 [courts “resolve all doubts against their issuance”].)

“Further, “the equitable nature of this doctrine does not give a court license to grant easements on the basis of `whatever [a court] deems important,’ even when [the three] prerequisites are absent.” (Shoen, supra, 237 Cal.App.4th at p. 19.) Shoen also explains that “[a]lthough the equitable easement doctrine is sometimes called the doctrine of `balancing of conveniences’ or the doctrine of `relative hardships’ [citation], these labels are somewhat misleading.

“These labels suggest that an equitable easement may issue if the conveniences or hardships merely favor the trespasser, when the doctrine actually requires that they tip disproportionately in favor of the trespasser. These labels also suggest that the conveniences or hardships between the trespasser and property owner start out in equipoise, when the doctrine actually requires that they begin tipped in favor of the property owner due to the owner’s substantial interest in exclusive use of her property arising solely from her ownership of her land.” (Ibid.)

“Shoen discusses at length the reasons for requiring the seeker of an equitable easement “to prove that she will suffer a greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner will suffer from its grant.” (Shoen, supra, 237 Cal.App.4th at p. 20; see id. at p. 21 [“additional weight is given to the owner’s loss of the exclusive use of the property arising from her ownership, independent of any hardship caused by the owner’s loss of specific uses in a given case”; “[t]o allow a court to reassign property rights on a lesser showing is to dilute the sanctity of property rights enshrined in our Constitutions”].)

“And finally, the authorities state that the first factor—showing the trespass is innocent rather than willful or negligent—”is the most important.” (Hansen, supra, 22 Cal.App.5th at p. 1028id. at p. 1029 [“`If the [encroaching] party is willful, deliberate, or even negligent in his or her trespass, the court will enjoin the encroachment.'”].)


An encroachment into an easement that prevents it use for the intended purpose is actionable.

“No person may erect buildings or other structures on his own land so that any part thereof, however small, extends beyond his boundaries and encroaches upon adjoining premises.” McKee v Fields (1949) 187 Ore 323, 326.