Easements usually for specific purpose, such as accessing property

“A friend told me I could get around the rules by using an easement. Can you tell me how that works?”

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Q: I own two 1-acre parcels just outside Vacaville. The parcels are next to each other. I want to build a home for myself on one parcel and sell the other. My problem is with the county. The home my architect has designed, together with the landscaping and small vineyard I want, means that I need to take about 50 feet of the lot I want to sell to make it all work.

When I spoke with the guy at the planning office about doing a lot line adjustment, he told me I couldn’t because the minimum parcel size in my area is 1 acre and taking land away from the other lot would reduce its size below the minimum. A friend told me I could get around the rules by using an easement. Can you tell me how that works?

A: It is becoming increasingly common in California to enact zoning statutes that create minimum lot sizes. The idea is to prevent landowners from subdividing their land into very small pieces, selling them off, and turning rural areas into suburbs.
Numerous court challenges over the years have determined these kinds of zoning restrictions are legal, at least in California.
Easements are, simply put, a type of permission to use the land that belongs to another person. What makes easements unique is that most easement rights transfer with the property. So, whether you’re burdened by someone else’s easement or you benefit from an easement on someone else’s land, the burden or right transfers with title to either property.

In other words, if a neighbor has an easement allowing him to drive across your lot to get to his, that right will continue even if you sell your property to someone else.

If you hold an easement, you don’t own the land, you just have a right to use it, usually for a particular purpose. The landowner is still the owner, pays the taxes and can use your easement in any way he wants just as long as it doesn’t interfere with your use.

Easements are usually for a specific purpose, such as accessing a neighboring property. They can also be for the purpose of laying PG&E lines or other utilities underground.

These days, easements are generally found to be unenforceable. In residential settings, the courts have become increasingly hesitant to allow exclusive easements to stand. Courts will often negate the easement as violating public policy, or will interpret the easement as not being exclusive, which means you don’t get the fence.

If you and the buyer of the other property agree to the easement, you can have it drafted and recorded. You just need to be aware that somebody, someday, will buy the neighboring property and challenge the validity of the easement, which will probably be followed by you having to remove whatever improvements, like a fence or wall, you created on it.

Tim Jones is a real estate attorney in Fairfield. If you would like your real estate question answered in this column you can contact him at AllThingsRealEstate@TJones-Law.com.

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