Boundary & Easement  ·  October 26, 2026

Landlocked Lot in California? Easements by Necessity

The short answer

A lot with no recorded right of access is not necessarily stuck. California recognizes several ways an access right can exist without a written easement, and each has different requirements:

• Easement by necessity. Requires that the landlocked lot and the neighbor's lot were once owned by the same person, that a conveyance split them, and that the split left the lot with no other legal access. The necessity must be strict, and the easement lasts only while it continues.
• Implied easement from prior use. Requires the same kind of common ownership, plus a use existing at the time the land was divided, such as a driveway, that both parties knew about or that was so obvious and apparently permanent that they should have. The necessity need only be reasonable, not strict.
• Easement by reference to a recorded map. A deed that describes a lot by reference to a recorded subdivision map showing a street can carry a private right to use that street.
• Equitable easement. Requires no common ownership and no history of use. A court balances the hardships and may grant access if the party seeking it did not act willfully or negligently, and may require compensation to the neighbor for a proven loss.

Prescriptive easements, based on five years of open, continuous and adverse use under a claim of right, are a separate route covered in our other articles. For utilities alone, Civil Code section 1001 allows a limited form of private condemnation.

What is an easement by necessity in California?

The elements

The California Supreme Court restated the test in Murphy v. Burch (2009) 46 Cal.4th 157: "Two circumstances are indispensable to the implication and must be shown: (1) a strict necessity for the claimed right-of-way, as when the claimant's property is landlocked; and (2) the dominant and servient tenements were under common ownership at the time of the conveyance giving rise to the necessity." Without common ownership, "an easement by necessity will not be implied based solely on a showing of necessity."

The classic fact pattern appears in Reese v. Borghi (1963) 216 Cal.App.2d 324. Common owners sold off the parcels between the parcel they kept and Witherly Lane, leaving the retained parcel landlocked. The court affirmed a right-of-way of necessity, and the judgment provided that it would end when the parcel was no longer landlocked.

"Strict" means strict

The necessity is judged harshly. Murphy: "No easement will be implied where there is another possible means of access, even if that access is shown to be inconvenient, difficult, or costly." A steep, expensive or roundabout alternative route can defeat the claim, and in Horowitz v. Noble (1978) 79 Cal.App.3d 120 a necessity claim failed because the record did not show the lot was "completely landlocked."

It ends when the necessity ends

A necessity easement is not permanent in the way an express easement is. Murphy: "such an easement continues only as long as the need for it exists," and "if adequate alternative access becomes available, the easement terminates." The burden is on the party claiming the necessity has ended. In Kellogg v. Garcia (2002) 102 Cal.App.4th 796, the court held that "The party proposing that strict necessity no longer exists bears the burden of proof on that issue."

No five-year quiet title bar

A necessity easement can be asserted long after the land was divided. Kellogg, quoting the Witkin treatise, stated that it "may be asserted by remote grantees in the chain of title long after the easement was created by the original common grantor, despite the failure of a prior grantee to exercise the right," and that the five-year statute of limitations on quiet title actions in Code of Civil Procedure section 318 does not apply. Hinrichs v. Melton (2017) 11 Cal.App.5th 516 later stated that the five-year period "does not apply to an easement by necessity."

When the common owner was the federal government

Some California land traces back to federal patents, so the "common owner" a claimant can find may be the United States. Kellogg held that the federal government may be the common owner and found a necessity easement for a mine landlocked by federal land when it was patented in 1878. Murphy later held that "extreme caution must be exercised in determining whether an access easement arises by implication when common ownership is traced back to a federal grant made without an express reservation for access," and found no easement on the facts before it. In Moores v. Walsh (1995) 38 Cal.App.4th 1046, the court held that any necessity easement arising from federal ownership was extinguished once the claimed burdened land passed to private owners, because the State, which then owned the landlocked parcel, could exercise eminent domain. A claim that depends on a federal patent faces a hard road.

Can I get an easement if the driveway has always been used?

Implied easement from prior use

Civil Code section 1104 provides that a transfer of real property "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 Romero v. Shih (2024) 15 Cal.5th 680, the Supreme Court restated the elements, quoting Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406: the owner conveys part of the property; the owner's prior existing use "was of a nature that the parties must have intended or believed that the use would continue"; and "the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement."

The key difference from necessity is the word "reasonably." A prior-use easement does not require that the lot have no other access at all. It does require proof of a use existing when the land was split that both parties knew about, or that was so obvious and apparently permanent, such as a paved or graded driveway visible on the ground, that they should have known of it, and clear evidence of what the parties intended.

How hard it is to prove

Romero cautioned that "Implied easements are not favored in the law" and that "The evidentiary standard for recognizing an implied easement is a high one," requiring "clear evidence" of the parties' intent. Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131 held that the standard of proof is a preponderance of the evidence and that the need for clear evidence describes the quality of the proof, not a clear-and-convincing standard.

How wide the easement is

A prior-use easement follows the use. In Kytasty v. Godwin (1980) 102 Cal.App.3d 762, the court affirmed an implied easement over a long-used road but reversed a 60-foot width, stating that on the record an easement wider than approximately 12 feet would not appear reasonable, and remanded for the trial court to set the width. In Fristoe v. Drapeau (1950) 35 Cal.2d 5, the Supreme Court held the scope extends to uses the parties reasonably contemplated, "not only to the actual uses being made at the time of the severance." And in Romero, which involved a driveway, planter and wall in Sierra Madre that extended onto the neighboring lot, the Court held that an implied easement may, "in rare cases," effectively exclude the burdened owner from the easement area where the parties clearly intended that result.

The rule runs in both directions. A seller who keeps one lot and sells the other can also hold an easement by implied reservation over the lot sold. Horowitz affirmed one over a paved driveway.

The recorded map

When a subdivider records a map showing streets and sells lots by reference to it, the purchaser of a lot can acquire a private right to use the streets shown, under a line of cases beginning with Danielson v. Sykes (1910) 157 Cal. 686. The doctrine has limits. In Mikels v. Rager (1991) 232 Cal.App.3d 334, the court, quoting an earlier decision, stated: "Where the abutting street is not a part of the recorded subdivision, the doctrine of implied grant can have no application." For an older hillside lot, the original tract map is worth pulling before anything else.

What if there was never a common owner?

Then necessity and prior-use claims are unavailable, and the usual remaining routes are a prescriptive easement, if there has been five years of qualifying use, or an equitable easement.

Equitable easements

An equitable easement is a remedy a court fashions by balancing hardships. In Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, owners bought two adjoining Rancho Palos Verdes lots served by a shared driveway that crossed a strip of the neighbors' land, sold the lot with the house, and then learned that the lot they kept had no recorded easement to the street. "Lot 18 was essentially landlocked." The Court of Appeal affirmed an equitable easement over the driveway, held that an owner may seek one affirmatively, and held that the cases cannot "fairly be read to require long-standing prior use."

In Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, the court affirmed an equitable easement over a mountain road that was the only access to the parcels, where building an alternative would have required a 40-foot retaining wall and about 40,000 cubic yards of earthwork, and remanded for the trial court to specify the width of the easement. Hinrichs combined a necessity easement over one neighbor's parcel with an equitable easement over a small part of another's to complete a single access route.

The requirements are demanding:

• Innocence. The party seeking the easement must not have acted willfully or negligently. In Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, the court reversed an equitable easement because the encroachment was negligent: the party had planted on the disputed strip after learning of a lot-line problem. Building across a neighbor's land after learning there is a title problem can forfeit the remedy.
• Hardship. The neighbor's harm from the easement must not be irreparable, and the hardship to the party seeking the easement if it is denied must be greatly disproportionate to the hardship the easement causes the neighbor. In Shoen v. Zacarias (2015) 237 Cal.App.4th 16, the court reversed an equitable easement and stressed, quoting Linthicum, that courts approach these cases with "an abundance of caution."
• Compensation. The doctrine allows the court to require payment to the neighbor, but damages must be proven. Tashakori, quoting Linthicum: "The trial court cannot award damages in the abstract."

Prescriptive easements

Five years of open, notorious, continuous and uninterrupted use, adverse to the owner and under a claim of right, can create a prescriptive easement. Our articles on easement scope and paving and on whether a neighbor can claim part of your yard cover that doctrine. Use with the owner's permission is not adverse, which is why use under a friendly arrangement with the owner's permission does not support a prescriptive claim.

Can I force a neighbor to give me utility access?

Sometimes. Civil Code section 1001 allows "Any owner of real property" to "acquire by eminent domain an appurtenant easement to provide utility service to the owner's property," and defines utility service as "water, gas, electric, drainage, sewer, or telephone service." The owner must establish that "There is a great necessity for the taking," that the location "affords the most reasonable service to the property to which it is appurtenant, consistent with the least damage to the burdened property," and that the owner's hardship if the taking is not permitted "clearly outweighs any hardship to the owner of the burdened property."

Before filing, the owner needs a resolution from the city council, or the county board of supervisors if the land is not within a city, consenting to the acquisition and finding those conditions met. (Code Civ. Proc., §§ 1245.310, 1245.325, 1245.330.)

Section 1001 does not mention roads. California once had statutes allowing private condemnation of access ways, and the Supreme Court noted in Murphy that they were repealed in 1975. Section 1001's private condemnation right is limited to the utility services it lists. (A separate statute, Civil Code section 1002, allows a temporary right of entry onto neighboring land for repairs, not permanent access.)

For the neighbor whose land would carry the road

The neighbor has real arguments, and the burden is mostly on the claimant:

• Necessity: no common ownership in the chain of title, or another possible means of access, even an inconvenient or costly one. If a public road or recorded access later becomes available, the neighbor may ask the court to end the easement, but must prove the necessity has ended.
• Prior use: no use at the time the land was divided that the parties knew of or that was obvious and apparently permanent, or no clear evidence the parties intended it to continue. Even if an easement exists, its width and uses are limited to what the use supported.
• Equitable easement: the claimant was negligent, or the hardship is not greatly disproportionate. If the court grants one anyway, the neighbor can prove and seek compensation.

Either side may bring the question to court through a quiet title action under Code of Civil Procedure section 760.010 and following, which requires a verified complaint describing the property, the claimed interest and the adverse claims. Our quiet title practice page describes how those cases proceed.

What to do before you buy, build or sue

1. Get the title report and read Schedule B, including whether the policy insures access. The 2021 ALTA owner's policy form lists "No right of access to and from the Land" as a covered risk. Your policy may be an older form with different language. Read the one you have.
2. Trace the chain of title back to the point where the landlocked lot and the neighbor's lot were last owned by the same person. That conveyance is where a necessity or prior-use claim is born or fails.
3. Pull the recorded tract map and any parcel maps.
4. Collect evidence of the historical use: aerial photographs, old surveys, county records, and witnesses who knew the property when it was divided.
5. Get a survey showing the route, its width and any alternative routes. An alternative, however expensive, can defeat a necessity claim.
6. Do not build first and ask later. Improving a route over a neighbor's land after learning there is a problem can cost you an equitable easement.

Both sides are better positioned to evaluate an access dispute once the chain of title and the survey are in hand. Our boundary and easement practice represents owners on both sides. If the dispute is about maintaining a road you already share, see our article on who pays to fix a shared private road.

Common questions

This article is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and case law change, and how they apply depends on the specific facts. Attorney advertising. Prior results do not guarantee similar outcomes. Robert B. Mobasseri, State Bar No. 193193, ROMO Law Group, Encino, California.