What are the New Eviction Requirements for Landlords in California?

Effective January 1, 2024, but not operative until April 1, 2024, new requirements for evictions of dwelling units in Civil Code §§ 1946.2 and 1947.12 tighten up the requirements for a landlord to terminate a tenancy under the Tenant Protection Act (i.e., California statewide rent cap and just cause eviction law) for no-fault evictions based upon owner move-in or substantial remodeling. 

Additionally, an owner who violates the TPA by improperly terminating a tenancy or by raising rent beyond the maximum amount is liable for actual damages, reasonable attorney’s fees and costs (at the discretion of the judge), up to three times actual damages for willful violations and punitive damages. 

 

The Tenant Protection Act of 2019 is a statewide rent cap and just cause eviction law. Under the TPA, there are only four permissible reasons on which a landlord may base a no-fault termination of tenancy. 

 

The new law seeks to close perceived loopholes in two of them: terminations based on owner-move and those based on demolishing or substantial remodeling. The new law also seeks to address the question of remedies for a violation of the TPA. Currently, the TPA does not specify damages or enforcement mechanisms. 

 

Termination of tenancy based on owner move-in.

 

In order to lawfully evict a tenant for just cause on the basis of an owner move-in:

 

1.         The owner must identify in the written eviction notice the name and relationship to the owner of the intended occupant and include notification that the tenant may request proof that the intended occupant is actually an owner or related to the owner.

 

2.         The owner or their family member would have to move in within 90 days after the tenant vacates and then occupy the unit for at least one year

 

3.         The owner or their family member could not already occupy a unit and there could not be another vacant unit at the property.

 

4.         If the intended occupant does not actually move in within 90 days or use the unit as their primary residence for at least a year, the owner must offer the unit back to the tenant who was evicted at the same rent and lease terms in effect at the time they vacated and reimburse the tenant for reasonable moving expenses incurred in excess of the required relocation assistance payment that may have been made in connection with the eviction.

 

5.         If the former tenant does not move back in, and the owner subsequently identifies a new tenant still within the yearlong period after the eviction, the unit must continue to be offered at the lawful rent in effect at the time the eviction occurred and 

 

6.         The owner has to be a natural person holding at least a 25% ownership interest in the property (in order to prevent someone who holds a very small share of the property from evicting a tenant), a natural person who co-owns the property entirely with family members either outright or via a family trust, or a natural person who meets the 25% ownership threshold and whose recorded interest in the property is owned through an LLC or partnership.

 

Termination based on intent to demolish or to substantially remodel the residential real property. 

 

1.         Remodeling must require the tenant to vacate for 30 Consecutive Days. The remodel must not be able to be reasonably accomplished in a safe manner that allows the tenant to remain living in the place and must require the tenant to vacate the property for at least 30 consecutive days.

 

a.         However, the tenant is not required to vacate the property on any days where a tenant could continue living in the property without violating health, safety, and habitability codes and laws.

 

2.         Written Notice. A written notice terminating a tenancy must include all of the following:

 

            a.         A statement informing tenants of the intent to demolish or substantially remodel the unit,

 

            b.         The following statement verbatim: "If the substantial remodel of your unit or demolition of the property as described in this notice of termination is not commenced or completed, the owner must offer you the opportunity to re-rent your unit with a rental agreement containing the same terms as your most recent rental agreement with the owner at the rental rate that was in effect at the time you vacated. You must notify the owner within 30 days of receipt of the offer to re-rent of your acceptance or rejection of the offer, and, if accepted, you must reoccupy the unit within 30 days of notifying the owner of your acceptance of the offer”, 

 

            c.         A description of the substantial remodel to be completed, the approximate expected duration of the substantial remodel, or, if the property is to be demolished, the expected date by which the property will be demolished, 

 

            d.         A copy of the permit or permits required to undertake the substantial remodel. However, if the renovation is to abate hazardous materials then no permit need be given unless legally required. 

 

            e.         A notification that if the tenant is interested in reoccupying the rental unit following the substantial remodel, the tenant must inform the owner of their interest and provide to the owner their address, telephone number, and email address.

 

Any termination notice that does not comply with any provision of the just cause rules is void. 

 

Damages and enforcement mechanisms: Recovery of possession.

An owner who attempts to recover possession of a rental unit in material violation of the just cause provisions will be liable for: 

 

            a.         Actual damages.

 

            b.         In the court’s discretion, reasonable attorney’s fees and costs.

 

            c.         Upon a showing that the owner has acted willfully or with oppression, fraud, or malice, up to three times the actual damages. An award may also be entered for punitive damages for the benefit of the tenant against the owner.

 

Damages and enforcement mechanisms: Collecting or demanding rent beyond the maximum.

 

An owner who demands, accepts, receives, or retains any payment of rent in excess of the maximum rent shall be liable in a civil action for all of the following:

 

            a.         Injunctive relief.

 

            b.         Damages in the amount by which any payment demanded, accepted, received, or retained exceeds the maximum allowable rent.

 

            c.         In the court’s discretion, reasonable attorney’s fees and costs.

 

            d.         Upon a showing that the owner has acted willfully or with oppression, fraud, or malice, damages up to three times the amount by which any payment demanded, accepted, received, or retained exceeds the maximum allowable rent.

 

Note on “actual damages” for material violation in termination of tenancy rules:

 

A tenant who has been wrongfully evicted is now authorized to recover actual damages. How might one calculate actual damages? The case of DeLisi v Lam (2019) 39 Cal.App.5^th 663, which involved the San Francisco rent control ordinance, is illustrative of how open ended the calculation can be. In the DeLisi case, the judge permitted the jury to weigh two competing (and mutually exclusive) methods of determining actual damages, as set forth by the expert witnesses for each side. 

 

First, according to the expert for the tenant, actual damages are the difference between the rent being paid by the tenant and the market rate rent, multiplied by the tenant’s intended length of occupancy. The tenant testified that she intended to stay five or ten years. Under the San Francisco ordinance, a triple damage penalty is automatically applied. Taking into account the present value of a ten-year tenancy, the expert arrived at a figure of $287,180. That figure multiplied by three would allow for total damages of approximately $860,000. 

The expert for the landlord took a different view. In his view, the value of the rent-controlled tenancy was not an asset the tenant could monetize. Instead, damages would be the amount the tenant was out-of-pocket beyond what she would have been if she had stayed in the rent-controlled apartment. This included moving expenses, the difference between her monthly rent at the rent-controlled property and her monthly rent at her new apartment, and any differences in expenses for items such as commuting to work. All in all, “actual damages” would be $23,139 for a five-year period and $48,183 for a 10-year period. Multiplied by three these dollar figures are still considerable, but a far cry from amount calculated by the tenant’s expert. 

 

The jury returned a verdict for $120,000 which multiplied by three equals $360,000. Which theory of “actual damages” did the jury base their decision on? No one knows for sure. Juries are not required to report the basis of their decisions. (They can be asked to answer specified questions. But even there, they are not reporting the reasoning behind their decision). 

 

In many legal cases the attorney fees are staggering, often in excess of the actual damages awarded. Attorney fees may be awarded to the tenant at the discretion of the judge.

 

LESSONS:

 

1.         Landlords should carefully review Civil Code §§ 1946.2 and 1947.12 to determine the requirements for evicting tenants of dwelling units.

 

2.         Landlords should also carefully review any applicable city and county eviction requirements.

 

3.         The new law seeks to close perceived loopholes in two of them: terminations based on owner-move and those based on demolishing or substantial remodeling. 

 

4.         The new law also seeks to address the question of remedies for a violation of the TPA because currently, the TPA does not specify damages or enforcement mechanisms. 

Is a California Landlord Liable for Tenant's Dogs with Dangerous Propensities?

In the recent California decision in Fraser v. Farvid, the appellate court affirmed the trial court's decision in the case where Plaintiff Joni Fraser was attacked by two pit bulls who escaped from a single-family residence their owner, Hebe Crocker (Crocker or tenant), leased from Ali Farvid and Lilyana Amezcua (defendants or landlords).  

Plaintiff sued Crocker and defendants. Plaintiff settled with Crocker. 

 

The case against the landlords proceeded to trial, and a jury found plaintiff proved that defendants had actual knowledge of the dangerous propensity of Crocker’s dogs and could have prevented foreseeable harm to plaintiff. The jury found plaintiff suffered damages of more than $600,000. 

 

The trial court granted defendants’ motion for judgment notwithstanding the verdict (JNOV), finding no substantial evidence was produced at trial demonstrating defendants’ knowledge of the dogs’ dangerous propensities. 

 

Under California law, a landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person. 

 

Without knowledge of a dog’s propensities a landlord will not be able to foresee the animal poses a danger and thus will not have a duty to take measures to prevent the attack.

 

This “actual knowledge rule” can be satisfied by circumstantial evidence the landlord must have known about the dog’s dangerousness as well as direct evidence he actually knew.

 

The appellate court agreed with plaintiff that there was evidence from which the jury could have disbelieved defendants’ testimony that they did not know there were any dogs on the property. 

But the only other evidence plaintiff relies on to establish defendants actually knew the dogs were dangerous—other than challenges to defendants’ credibility—was an e-mail from a next-door neighbor about the state of the property. 

 

This e-mail was neither direct nor circumstantial evidence that defendants knew or must have known the tenant’s dogs were vicious. 

 

The e-mail in question, sent on May 29, 2017, about 15 months before plaintiff was attacked read: “Hi Lilyana and Ali – I hope that you are getting a nice mini break with the holiday. Lorne and I wanted to let you know of your house. We aren’t sure how much you know. There is a new person living there. It is the same woman but it seems she may be either subletting or have an extended guest. . . . On the good end, they are no longer burning left over marijuana plants and they are so quiet. Even the 2 guard dogs in the back are quiet. Hopefully, it’s just the outside and inside is in good repair. We are not sure if you have a property manager who can check things out. We do miss having neighbors that we can talk to. Leigh.” 

 

Plaintiff contended this e-mail “itself constitutes ‘substantial evidence’ of defendants’ knowledge that the dogs were dangerous.” 

 

Plaintiff argued the e-mail’s reference to two “guard dogs,” plus defendants’ “false exculpatory statements” that they did not know the tenant kept any dogs on the property, constitutes affirmative evidence of actual knowledge that the dogs were vicious.

 

Defendants, on the other hand, contended none of this constituted evidence from which a reasonable juror could infer they knew or must have known of the dogs’ vicious nature. 

 

In 2018, while she was walking her dog in the neighborhood, plaintiff was attacked by Crocker’s two pit bulls. The dogs had escaped from Crocker’s back patio after someone left the gate unlatched. 

 

The facts about the attack and the severity of plaintiff’s injuries were not disputed. 

 

Defendants, a married couple, have owned the subject property since 2005. 

 

In December 2015, defendants leased the property to Crocker for a one-year term, and after that Crocker continued to rent the premises on a month-to-month basis.

 

The lease prohibited subletting without permission and prohibited dogs without permission. 

 

About a year after she moved in, Crocker acquired the dogs, and after rehabilitating them on a friend’s ranch for six months, she brought the dogs to the property. 

 

She testified they were her emotional support dogs.  She did not ask the defendants’ permission; and she never explicitly told them about the dogs. 

 

Defendants did not produce the May 2017 e-mail in discovery. 

 

At her deposition in April 2019, defendant Amezcua testified she had no communications from anyone about dogs on the premises. 

 

In May 2019, Ramos-Platt forwarded the May 2017 e- mail to counsel for plaintiff, in response to a subpoena, saying it was the only e-mail she had regarding communication with the landlords. 

 

Amezcua authenticated the e-mail at trial. 

 

Defendant Farvid testified that prior to the attack, he had no idea the dogs were there, and no one ever told him there were guard dogs on the property. He testified that if he had seen any dogs being kept on the property, he would have brought that up with Crocker, especially if they were these dogs, because that would have been a breach of the lease. 

 

When he was shown the May 2017 e-mail at trial, he said he did not recall seeing the e-mail before. 

 

Defendant Amezcua also answered, “Not that I recall,” to the question whether, prior to the attack, she knew there were any dogs on the premises. 

 

There was testimony from Susan Murray that in June 2017, the dogs attacked her 20-pound dog while she and her husband were walking their dogs. Murray had a puncture wound on her index and middle fingers inflicted by one of the pit bulls while she was trying to separate the dogs. 

 

However, Murray did not report the attack to animal control authorities. She did not want the dogs to be put down, and she believed Crocker would always leash her dogs in the future and that it wouldn’t happen again. She also testified she never had any communication with either of defendants. 

 

At trial, the jury found (9 to 3) both defendants had actual knowledge of the dangerous propensity of the dogs and had the ability to prevent foreseeable harm to plaintiff. 

 

The jury found Crocker 60 percent responsible, and each of defendants 20 percent responsible. Plaintiff’s damages amounted to $604,977.10. 

 

In its ruling on defendants’ JNOV motion, the trial court found there was an absence of any evidence that Defendants Farvid and Amezcua had actual knowledge that Crocker’s dogs were dangerous and vicious prior to the incident involving Plaintiff.

 

Regarding the May 2017 e-mail from Ramos-Platt mentioning “the 2 guard dogs,” the court stated: “In fact, the ‘guard dog’ comment says nothing to warn anyone about these dogs’ dangerous propensities but has been used by Plaintiff’s counsel to suggest that this comment, not remembered by Amezcua, is compelling proof that both Farvid and Amezcua had knowledge of the dangerous and vicious propensities of the two dogs.” 

 

The court found the comment lacked “sufficient substantiality” to support a finding that defendants knew the dogs had dangerous propensities. 

 

A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. 

 

The standard of review on appeal is the same: whether any substantial evidence—contradicted or uncontradicted—supports the jury’s conclusion. 

 

As already mentioned, to establish a landlord’s liability, the plaintiff must present either direct evidence the landlord actually knew about the dog’s dangerousness or circumstantial evidence that the landlord must have known. 

 

 

Actual knowledge can be inferred from the circumstances only if, in the light of the evidence, such inference is not based on speculation or conjecture. Only where the circumstances are such that the defendant ‘must have known’ and not ‘should have known’ will an inference of actual knowledge be permitted.

 

The appellate court agreed with the trial court that there is neither direct nor circumstantial evidence that defendants knew or must have known Crocker’s dogs were dangerous.

 

Plaintiff contended the May 2017 e-mail alone constitutes substantial evidence defendants were told the dogs were dangerous, because calling the pit bulls ‘guard dogs’ was the same thing as calling them ‘vicious’ or ‘dangerous. Plaintiff argued guard dogs are presumed vicious. 

 

The appellate court disagreed, finding there is no reasonable basis for drawing an inference from the May 2017 e-mail that defendants knew or must have known the dogs were dangerous.

Plaintiff contended that defendants’ "false exculpatory statements” that they were unaware of any dogs being kept on the property “constitutes evidence that they knew the dogs were dangerous.

 

In this case, there is no evidence at all of defendants’ knowledge of the dogs’ vicious propensities. No one other than Crocker and Murray (the person who was bitten in the June 2017 incident) had any knowledge the dogs were dangerous before the August 2018 attack, and they told no one. 

 

Under the circumstances, the inconsistencies in defendants’ testimony about their knowledge of any dogs on the property could not, standing alone, justify an inference they knew or must have known the dogs were vicious. 

 

Nor was there any merit to plaintiff’s claim that defendants ratified Crocker’s conduct by allowing her to keep her dogs after the attack. 

 

The trial court correctly concluded there was no evidence of ratification, and the jury was not instructed on and made no finding on ratification. 

 

LESSONS:

 

1.         A landlord should remain aware of the presence of dogs and their character in rental units, and should determine if any have a vicious nature.

 

2.         The “actual knowledge rule” can be satisfied by circumstantial evidence the landlord must have known about the dog’s dangerousness as well as direct evidence he actually knew.

 

3.         Under California law, a landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person. 

 

4.         A landlord should have a written lease that limits the number and nature of dogs by tenants, and such lease provisions should be enforced.

When Will an Implied Easement be Enforced in California?

The dispute over a residential driveway in Sierra Madre raised a significant question about the law of easements that was decided in an unanimus decision by the California Supreme Court in the recent decision in Romero v. Shih.

Under California law, the parties to a sale of real property may grant or reserve easements as part of the transaction. This may be done expressly, in a written instrument, or impliedly, based on clear evidence of the parties’ intent. 

 

In this case, the trial court concluded that the parties to a 1986 division and sale of two adjacent residential properties intended to create an implied easement over an eight-foot-wide strip of land that belonged to one parcel, but that had been used as the driveway to the home on the neighboring parcel. 

 

As a consequence, the current owners of the neighboring parcel could continue to use that strip of land as a driveway. 

 

The Court of Appeal reversed concluding that regardless of what the parties to the 1986 sale might have intended, the law prohibits a court from recognizing an implied easement that precludes the property owners from making all or most practical uses of the easement area. 

 

Because recognizing the neighbors’ nonpossessory right to use the land as a driveway would effectively prevent the property owners from using the land for their own purposes, the Court of Appeal concluded that the easement could have been created only in a written instrument and not by implication. 

 

The Supreme Court took this case to decide whether the law imposes such a limitation on the recognition of implied easements. 

 

It concluded that it does not. The evidentiary standard for recognizing an implied easement is a high one, and that standard will naturally be more difficult to meet where, as here, the nature of the easement effectively precludes the property owners from making most practical uses of the easement area. 

 

But if there is clear evidence that the parties to the 1986 sale intended for the neighboring parcel’s preexisting use of the area to continue after separation of title, the law obligates courts to give effect to that intent. 

 

The Supreme Court reversed and remanded for the Court of Appeal to consider whether substantial evidence supports the trial court’s finding that an implied easement existed under the circumstances of the case. 

 

In the early 1940’s, Edwin and Ann Cutler (the Cutlers) purchased adjacent parcels of property on West Alegria Avenue in Sierra Madre. 

 

Soon after, the Cutlers built a home on the parcel lying to the east, at 643 West Alegria Avenue (the 643 Property). In the years that followed, the Cutlers built a brick garden planter in the front left corner of the yard and next to it, a driveway running along the western edge of the property for its entire length. 

 

The planter and driveway encroached by about eight feet onto the Cutler’s other parcel, which lay directly to the west at 651 West Alegria Avenue (the 651 Property). 

 

A chain- link fence marked the western edge of the driveway and planter, separating the 643 Property and the encroachments from the remainder of the 651 Property. The encroaching area consisted of a strip of land measuring about 8 feet wide by about 157 feet long, for a total area of almost 1,300 square feet, or about 13 percent of the 651 Property’s 10,000-square-foot lot. 

 

Edwin Cutler applied to the city to adjust the boundary between the 643 Property and the 651 Property to the line marked by the chain-link fence. The Sierra Madre Planning Commission approved his request, subject to a city engineer’s review of the parcel map and boundary line adjustment. 

 

But for reasons that were not clear from the record, the process was never completed and the legal boundary line remained as before. 

 

Although the lot line adjustment had not been completed, the Cutlers, and future owners Bevon, and Shewmake proceeded much as if it had been. 

 

They obtained building permits from the city and completed construction on the house, and the chain-link fence separating the 651 Property from the 643 Property was replaced with a concrete block wall. 

 

In 1986, the Cutlers conveyed the 651 Property to Bevon and Shewmake, and on the same day, Bevon and Shewmake sold the property to another family. Both grant deeds described the 651 Property according to the original boundary lines, without mentioning or accounting for the encroachments on the strip of land along the property’s eastern edge.

 

Plaintiffs Cesar and Tatana Spicakova Romero (the Romeros) purchased the 651 Property in 2014. 

 

That same year, defendants Li-Chuan Shih and Tun-Jen Ko (the Shih-Kos) purchased the 643 Property from Ann Cutler’s estate. 

 

At the time they purchased their respective properties, neither the Romeros nor the Shih-Kos were aware of any easements, encroachments, or boundary disputes. 

 

None had been disclosed by the sellers in the respective purchase agreements or advertising materials, and neither party had taken steps to verify that the concrete block wall separating the properties conformed to the true boundary line. 

 

The Romeros did not discover that anything was amiss until about a year after purchasing the 651 Property, when Cesar Romero was taking measurements in his front yard for a landscaping project and realized that the yard was not as wide as he expected. The Romeros commissioned a survey, which confirmed that the 643 Property’s garden planter and driveway were encroaching on the 651 Property. 

 

The Romeros filed a lawsuit against the Shih-Kos, requesting that the Shih-Kos be ordered to remove all encroachments and pay damages. 

 

The Shih-Kos filed a cross- complaint alleging that when the Cutlers separated the 643 and 651 Properties in 1986, they created an implied easement over the disputed area in favor of the 643 Property. 

 

In the alternative, the Shih-Kos asked the court to create an equitable easement in favor of the 643 Property over the disputed area, which would entitle the Romeros to compensation for the burden imposed on their property. 

 

Interests in land can take several forms, including ‘estates’ and ‘easements. 

 

An estate is an ownership interest in land that is, or may become, possessory. 

 

An easement, by contrast, gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership. 

 

The law recognizes several methods of creating an easement. Among other methods, the parties to a real property transaction may grant or reserve an easement as part of the conveyance of land; an individual may acquire an easement by prescription, through the continuous, hostile, and adverse use of the property; or a court acting in equity may order that an easement be created under specified circumstances. 

 

The scope of the easement, like the scope of any servitude on land, is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.

 

When an easement is granted or reserved as part of a real property transaction, the grant or reservation may appear expressly in the terms of a written instrument. 

 

But even without a writing, California law recognizes the grant or reservation of the easement by implication in appropriate cases. 

 

The doctrine of implied easements is applied by the courts to carry into effect the intention of the parties as manifested by the facts and circumstances of the transaction.

 

California has codified the doctrine of implied easements in Civil Code section 1104. 

 

Section 1104, which has remained unchanged since its 1872 enactment, provides: “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.” 

 

In other words, when a grantor conveys a portion of an estate to another party but fails to expressly grant an easement in the written instrument, the law infers that the grantor and grantee intended the conveyed portion of the property to enjoy any preexisting uses of the grantor’s remaining estate that were “obvious[] and permanent[],” and the law accordingly implies an easement. 

 

In such cases, for purposes of identification, the portion or parcel that is being used is called the quasi-servient tenement, and the portion or parcel benefited by the use is called the quasi-dominant tenement. 

 

Where the statutory conditions are otherwise satisfied, if the owner conveys the quasi-dominant tenement, the grantee receives an implied easement for the use and benefit of his or her property over the quasi-servient tenement retained by the owner-grantor.

 

Although the Civil Code speaks only in terms of implying an easement in favor of a grantee, California also recognizes easements by implied reservation. The result is that a purchaser may take not only the obvious benefits but the obvious burdens as well.

 

Synthesizing the statutory text and common law elaboration of the doctrine, California appellate courts have summarized the elements of an implied easement 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.

Implied easements are not favored in the law. 

 

Because an implied easement deprives the property owner of the exclusive use of that property, courts do not lightly infer that the parties intended to create one. 

 

When an exclusive easement has been established, a dominant tenement owner may use the easement area only for a limited set of purposes, and the easement may be terminated if the dominant tenement owner ceases to use the area for those purposes. 

 

The trial court’s implied easement finding did not result in the creation of any new property rights; it instead clarified the respective rights of the neighbors as determined by the intentions of the parties at the time the two adjacent parcels were severed and sold to third parties. 

 

In other words, the trial court’s finding means the Romeros purchased the 651 Property subject to the implied easement; their bundle of property rights never included the right to make practical use of the easement’s surface area, and it was not a taking. 

 

LESSONS:

 

1.         The evidentiary standard for recognizing an implied easement is a high one, and that standard will naturally be more difficult to meet where, as here, the nature of the easement effectively precludes the property owners from making most practical uses of the easement area.

 

2.         Interests in land can take several forms, including ‘estates’ and ‘easements. 

 

3.         An estate is an ownership interest in land that is, or may become, possessory. 

 

4.         An easement, by contrast, gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership. 

 

5.         The law recognizes several methods of creating an easement. Among other methods, the parties to a real property transaction may grant or reserve an easement as part of the conveyance of land; an individual may acquire an easement by prescription, through the continuous, hostile, and adverse use of the property; or a court acting in equity may order that an easement be created under specified circumstances.