Easement Building Ban-Al Segalla, July 25, 2007
More thought may be needed on the new Calaveras County ban on building when access easements are not deeded or recorded.
Before Calaveras County property owners can obtain a building permit, they now have to prove that they have the right to cross any other property they need to cross in order to reach their own property. "Legal" access can be proven by providing a deed or title report, but in many cases in which people have been crossing others' property for 50 or 60 years, according to Stephanie Moreno, Community Development Agency director, property owners are often unable to prove that access. The new interpretation does not seem reasonable according to the Building, Real Estate, and Title Company industries, as well as the Calaveras Chamber of Commerce.
The county may find it wise to return to its long-standing policy of not denying building permits on legal parcels based on easement issues.
The new county policy is based on the building and zoning code requiring parcels to have "legal access" before a building permit can be granted. County staff recommended to the Calaveras County Board of Supervisors that "legal access" was only recorded or proven access; however, there are several forms of legal access that are not recorded or deeded.
In California, it is not possible to landlock a parcel, as that parcel has an Easement of Necessity over adjacent lands to the most reasonable connection to a public road. There is an obligation to pay the servant land owner for the easement, however.
Most non-recorded easements are Prescriptive Easements whereby access is over an existing road. To be a Prescriptive Easement, it must have been used continuously for five years without permission of the servant landowner. Many public roads are prescriptive easements including HWY 4. Prescriptive Easements cannot be claimed when permission is given. This permission can later be withdrawn.
Another legal non-recorded easement is an easement by permission.
Some of the recorded easements do have problems as well. Many have wording such as "A 50 foot easement for ingress and egress over the existing roads.…" Location of roads might change.
Of course, the best easement is that shown on a parcel map and the next best is a record of survey.
According to a local title company, there are estimated to be 2,000 to 3,000 legal parcels without recorded easements. These are slowly being resolved and recorded by agreements of the parties or the court. Many lenders want recorded road maintenance agreements that do need recorded easements.
It is very difficult for the county to review non-recorded easements for legality, especially if there are disagreements between neighbors. The county surveyor recommended that the applicant get a title company guarantee of access. Title companies do this in conjunction with title policies, but are not interested in insuring the county. Also, if it is not clear, the title insurance will have an exception anyway.
It is possible that the county, by not involving itself in easement issues and granting building permits on all legal parcels, may be included in easement litigation. This has been county policy but has never happened. However, by denying building permits, it places the applicant at the mercy of servant landowners. This tends to force litigation or a quiet title action. Since most non-recorded easements are really "legal" easements, the county seems to have a responsibility to grant the permit and, if it does not, could be held liable and sued by the applicant.
For more than thirty years, Albert J. Segalla, Broker, has been active in real estate in Tuolumne and Calaveras counties. Al has been a property rights advocate for many years, writing hundreds of letters to the Editor. He is also active with the Chamber of Commerce in both counties. Al can be reached on the Web at www.bambiland.com.