Under California law, parties to a sale of real property may grant or reserve easements as part of the transaction. An easement is a legal right to use another’s land for a specific purpose without owning the land. Most easements are express easements, specifically created in a written instrument. Such an easement or “right-of-way” would appear in a property’s title record. However, in recent years, the courts have begun recognizing more “implied” easements, which are not captured in writing and instead are based on evidence of the intent of the parties.
In Romero v. Shih, 15 Cal. 5th 680 (2024), the California Supreme Court held that an implied easement may be recognized even if, as a practical matter, it is “broadly exclusive,” meaning, it effectively prevents the property owner burdened by the easement from making most practical uses of the easement area—so long as the evidence clearly shows the parties intended the preexisting use to continue after title was divided. The Romero v. Shih court found that the parties to the original 1986 sale of two adjacent lots intended to create an implied easement over an eight-foot-wide strip of land belonging to the westernmost parcel, but that had been used as the driveway to the home on the neighboring easternmost parcel. Despite the fact that the westernmost parcel could make almost no use of its property in the easement area of the driveway, the court granted the implied easement to the owners of the easternmost parcel.
The Romero v. Shih decision reversed the Court of Appeal’s decision, which had treated broadly exclusive implied easements as impermissible. The California Supreme Court supported the trial court’s ruling and remanded the case for further proceedings to evaluate whether substantial evidence supported the trial court’s finding of an implied easement. The entire litigation in Romero v. Shih began because the most recent owners of the property burdened by the driveway did not know at the time of purchase that the driveway was technically on their property.
While highly technical, some practical lessons arise from this decision. First, when entering a real property transaction, be aware not only of easements on record, but investigate other long-standing and historic uses of property that could potentially form the basis for an easement. The plaintiffs in Romero v. Shih probably would have needed a survey of the property at the time of purchase to see that the driveway encroached on their land. Some might say this would have been difficult to foresee, and I do not disagree. But I think the plaintiffs probably would have wanted to avoid years of litigation at significant cost if they could have.
Second, always clearly document any changes to land uses or configurations on real property formally with the county or other governing body to ensure the title record is clear. Doing so would avoid the issues raised in Romero v. Shih, where the original parties simply failed to complete a lot-line adjustment for purposes of the driveway.
Third, as the decision in Romero v. Shih demonstrates, real property law is highly complex, so consult your real property attorney early and often when such concerns arise related to your real property.
