In Romero v. Shih, the Supreme Court today says that “[t]he evidentiary standard for recognizing an implied easement is a high one.” But, even though “[i]mplied easements are not favored in the law,” the court holds that an easement must be recognized when there is “clear evidence” of a prior intent to allow a particular use, even when “the nature of the easement effectively precludes the property owners from making most practical uses of the easement area.”
The court’s unanimous opinion by Justice Leondra Kruger concludes, “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.” (Quoting Civil Code section 1104.)
The court reverses the published opinion of the Second District, Division Eight, Court of Appeal, but leaves it to Division Eight to determine whether substantial evidence supports the trial court’s conclusion that an implied easement exists in the case.
