In one of our previous posts, we discussed obtaining an easement based on necessity. However, because of the common ownership requirement, a party trying to obtain an easement may not qualify, even if there is a great necessity for the easement. In that situation, you may be able to obtain an easement by condemnation.
In some cases, a private person may take private property by condemnation in order to acquire an easement for utility service to his or her property. However, the easement is limited to use for water, gas, electric, drainage, sewer or telephone service. (Civ. Code § 1001(c).) To acquire such an easement, the party trying to condemn an easement must prove that:
- There is a “great necessity” for the taking;
- That the location to be condemned provides the most reasonable service to the property and the least damage to the servant tenement; and
- The hardship to the condemning party “clearly outweighs” the hardship to the owner of the servient tenement. (Civ. Code § 1001(c); Code Civ. Proc. § 1245.325.)
For example, courts have upheld an easement by condemnation of a developer over neighboring land for a sewer easement where the subject property did not have access to sewage disposal over its own property.
Schorr Law has experience analyzing easement issues. For a free consultation our office at (310) 954-1877 or email us at email@example.com.
By Stephanie Goldstein, Esq.