Can you Build on an Easement? ADUs

Perhaps every property owner who has ever considered building an ADU has heard about ADU regulations. When you construct an accessory dwelling unit on your lot, you need to ensure the ADU’s layout, design, and location comply with local ordinances and zoning laws.

An ADU is a small residential unit that is secondary to the main house. Homeowners must build it within their existing private property lot, following rules such as setback requirements, size and height requirements, site limitations, and easements.

If you want to know what an easement is and how it influences the ADU construction process, read this article further!

Easement: What Is It?

An easement is the legal right of another person or people to pass through your land for some purpose.

For example, if your neighbors own property with a specific location that is only reachable through your property. Or, if they have to go to places of public access and the path lays through your land. For instance, if they go to a beach. Another typical example is when something akin to water pipes, telephone lines, or power lines breaks, an easement allows utility service workers to enter your property without special permission (utility easements).

Easements can restrict the area where you can build your ADU or influence the choice of ADU layout and design. In addition, they may affect the property’s value. Anyway, if an easement causes trouble for using private property, the property owner may try to terminate it.

Building ADUs on Property with Easements

Typically, a preliminary title report conducted before a property transaction can help you find out whether your property has any easements. It provides a deeper look into information about your lot ownership and contributes to the disclosure of encumbrances on the property.

However, even if your property has an easement, you can still, in most cases, build an ADU when there’s enough space outside it. Also, there are several other considerations worth mentioning:

1. During the ADU feasibility assessment, it’s vital to investigate if the easement covers the only possible area for constructing your ADU. This situation may arise due to the specific characteristics of the property. Alternatively, building an ADU may require expensive landscaping, affecting the property owner’s decision to build.
2. The effects on ADU construction may vary. From a mild nuisance, it can increase to a significantly complex structure. Remember that besides easements, your ADU should adhere to property line setbacks and fit in between existing structures, remaining at a safe distance from them.
3. Determine the type of easement. Different easements cause various effects on your lot. For example, some easements transfer with the lot, and some only belong to a specific party. In the last case, as soon as their land gets sold, they tear up the agreement and lose their right to trespass on your property. Thus, you can build an ADU in any way you want.
4. Property owners need to know how to terminate the easement. In some instances, you can get rid of all easement restrictions by going through several steps.

Summing up, if your property has an easement on it, it sometimes makes ADU construction difficult or even impossible. Nevertheless, if you apply to a professional ADU building company, in many cases, it can help you find a solution.

Easement Types

There are plenty of easement variations aimed at describing specific rights of access to property that a party doesn’t own. The common types of easements encompass the following:

Access Easements

Access easement gives people in question the right to pass through your land to achieve their plot or some place of public access. For instance, they can use a portion of your lot to reach a community road. If you block access to the driveway by your ADU, it will impair this person’s legal right to enjoy it.

Utility Easements

A utility easement is the right to enter and pass through private property to install, maintain, or fix utility lines. Utility service workers can repair the sewer system, electrical lines, telephone lines, internet connections, and so on. For instance, if a utility company has to have unobstructed access to underground lines or a sewer, you can’t build an ADU in this area or place any items.

Prescriptive Easements

Prescriptive easements arise when someone uses another person’s property without permission for a specific time established by the law. Let’s say your neighbor has been using a portion of your land to access their piece of land by using the shortest route for ten years. They didn’t ask the owner, but the owner didn’t protest. So they can gain the legal right to continue doing so according to easement laws.

Conservation Easements

These easements help to protect the natural environment. If your land has something of ecological importance, like a wildlife habitat, an easement can prevent you from landscaping or building on its specified part.

Various types of easements permit travel across a property for purposes of convenience or stemming from long-term unauthorized use, for installing utilities, and to preserve ecological elements by limiting specific land actions.

Easement in Gross and Easement Appurtenant

Along with the easements mentioned above, it’s necessary to draw a line between two different easement categories:

• Easement in Gross

It is an entitlement that favors a person, not a property. This easement links to a specific individual who has an agreement with the property owner to limit property use. It’s not transferable. Imagine that your neighbor obtained an easement to cross your land to access the park. However, other neighbors, as well as future owners of their property, will not be able to do the same.

• Easement Appurtenant

It is an entitlement attached to the specific land. To illustrate it, imagine the owners of the neighboring plot have an easement to traverse your land to get to a nearby river for fishing. Should the owner of their plot choose to sell the land, the easement for accessing the river would transfer along with the property to the new owner.

Express Easements and Implied Easements

Easements come in two subcategories based on how the parties make them:

• Express Easement

If parties sign a paper or make any other sort of written agreement registered by local authorities, the easement is expressed.

• Implied Easement

If you have no written documents, but the circumstances or previous actions assume the existence of an easement, it’s an implied easement. For example, if the landowner has allowed their neighbor to use a portion of their land to get to the driveway for a continuous period of time, we can talk about this type of easement.

Easement Termination

If your property has an easement burden and causes you inconveniences during ADU construction, you may try to terminate the easement.

To cancel a right to use your property without your consent, you can follow these steps:

1. Seek legal aid. If you have any disputes or issues that may arise from easement termination, it’s advisable to think it all through in advance.
2. Agree together. If both parties (the benefiting one and the encumbered one) come to a mutual agreement to end the easement, they need to make up a written document that signifies it.
3. Sign the document with a clear formulation of the decision made. Don’t forget that it needs signatures from both parties.
4. Make it legally binding. Usually, you record easements with the County Clerk. So, if that’s the case, you’ll need to register the termination with them.
5. Retain evidence. Keep documents like the agreement on easement termination and its records. Because if future disputes do arise, you’ll need them as proof to support the easement cancellation.
6. Ensure you follow local statutes when ending an easement to save yourself the trouble of legal action.

To sum up, the cancellation of an easement requires mutual agreement and documentation. If the party benefiting from the easement does not agree to cooperate, the party wanting to end it will need to start a legal action on the basis of the limited use of their property and the inability to use it as desired.

Reasons to Terminate an Easement

There are several ways to terminate an easement, including the following ones:

• Agreement of all parties

If the parties demonstrate mutual consent on easement revocation, you merely need to outline it in a document and sign it.

• Abandonment

When the benefiting party shows an intention to waive their rights or already doesn’t use them, you should provide unambiguous evidence of abandonment.

• Merger

If you’re a property owner with an easement on your plot, and you acquire the property that’s benefiting from the easement, you combine both properties into one ownership. After this, there’s no point in easement, so it ceases.

• End of necessity

If the easement was a result of some necessity that no longer exists, the corresponding easement terminates automatically.

• Adverse possession

If only the property owner uses their land visibly, exclusively, and without interruption, they can cancel out easement rights. In California, the time required is usually five years.

Easement Benefits

Looking a bit further into the right to use another’s property, we can find not only negative aspects but also positive ones. Sure, the presence of easements on the property may deter you from choosing a particular ADU structure and design. But remember that easements exist for a reason.

Easement advantages might include such things as:

• Convenient road access. Not only your neighbors but also your property and its visitors might benefit from a particular pathway leading to public roads;
• A common driveway. A shared driveway makes it easier for all the parties to access and park their cars;
• An unhindered view of natural or scenic beauty enhances the property’s appeal, potentially enhancing its value;
• Unrestricted access to sunshine for use in solar panels can allure buyers who intend to use solar energy as their primary power resource;
• Easements for historical building preservation can grant you potential tax relief or lucrative loans;
• An easement aimed at nature protection can benefit the environment and seem appealing to eco-friendly buyers;
• Utility easements ensure that your property also has direct access to essential services, and nothing would hinder the way, promoting the property’s functionality;
• Forestalling disputes. If there’s a documented easement on your property, it will clearly determine what the owner can and cannot do, helping to avoid legal conflicts.

All in all, there are different perspectives from which you can look at the property easement. If it occupies an area only suitable for an ADU, there may be a possibility of ceasing it.

Frequently Asked Questions — FAQ

Can you build around an easement?

If there is enough space outside the easement, it will be wise to build around it. Building around the easement area allows the property owner to avoid the burdensome easement revocation process. However, ensure you maintain the required distance specified by the easement. It may require changes to the ADU plan or a more complex solution.

How do easements work in California?

In California, easements grant the right to use another person’s property without an ownership right. This right can influence a property’s usage as well as the place available for an ADU building. Keep in mind that, in specific cases, it’s possible to terminate an easement.

How wide is a utility easement in California?

Utility easements are usually 10 to 20 ft. wide along the boundaries of the site. Yet, the specific width can vary depending on conditions like utility type, city rules, or considerations unique to the property. So, if there’s an easement on your property, make sure to consult the local authorities.

Where can I build an ADU if several properties share a common driveway?

In some communities, it’s possible that you and your neighbors only have one driveway. Thus, they can access it by using a portion of your property. In this case, entry or exit takes place in specially designated areas on the territory of your plot. You can build an ADU so that these areas do not get blocked.