An easement is defined as a nonpossessory interest in land belonging to another. Easements are either affirmative or negative. An affirmative easement gives an owner the right to enter the land of another. The owner of a negative easement may forbid another from entering his land. In California, there are four ways by which an easement may be created: express grant, prescription, implication and necessity.
California recognizes easements created by express grant. Easements created by express grant are established by a written instrument such as a deed or a contract. A party granting an easement to another may limit the scope of the easement by express language. The duration of an easement created by express grant can vary; it may last for the life of the grantor, for a specified number of years or forever.
California law allows for creation of an easement by prescription. An easement by prescription requires that a party use land owned by another in an open, notorious and hostile fashion. Open and notorious use is required because the true owner must be given a chance to witness the impermissible entry onto his land. In California, a person may only establish an easement by prescription if he has continuously and hostilely used the land of another for five years.
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California has two requirements for the creation of an easement by implication. The first requirement is that the easement be strictly necessary. In other words, a parcel of land must be landlocked with the owner having no other way of entering or exiting than by crossing the land of another. The second requirement is unity of title. Typically, this means that two parcels of land were once united.
An easement by necessity is one that must exist in order for an owner of a parcel of land to use and enjoy it. Typically, easements by necessity occur when it is impossible to enter or exit land without using the land of another. In California, easements by necessity are deemed "appurtenant," meaning they run with a particular piece of land even if it is subsequently sold.
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