IMPLIED EASEMENTS: CC 1104

Under certain limited circumstances, the courts will imply an easement, even if there is no written or oral agreement. Civil Code Section 1104. Implied easements are disfavored by the law. Horowitz v. Noble (1978) 79 Cal. App. 3d 120. They will be implied, only if two pieces of land previously had been owned by one person, and, while they had one owner, that owner had used one of the pieces of land to benefit the other, in a way similar to that of an easement.

The requirements for an implied easement were stated by the Court of Appeal in Tusher v. Gabrielsen (1998) 68 Cal. App. 4th 131, 141, as follows:

An easement will be implied when, at the time of conveyance
of property, the following conditions exist: 1) the owner of
property conveys or transfers a portion of that property to
another; 2) the owner’s prior existing use of the property was
of a nature that the parties must have intended or believed that
the use would continue; meaning that the existing use must
either have been known to the grantor and the grantee, or have
been so obviously and apparently permanent that the parties should
have known of the use; and 3) the easement is reasonably necessary
to the use and benefit of the quasi-dominant tenement.

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