Legal Question in Real Estate Law in California

Re: implied easement

This is a difficult question. As I read Civil Code section 1104, it deals with the rights of the acquirer of a parcel, or of a part of a parcel that has been severed, and not with the rights of the grantor. In other words, 1104 deals with transfer of existing easements and with the implied grant of necessary access easements by an acquirer of a severed parcel, but to with the matter of the failure of the seller to reserve an easement. It is the difference between granting an easement and reserving an easement.

However, I hasten to add that there are a great many cases interpreting 1104 and I am unfamiliar with most of them, and there very well may be cases holding that there can be an implied reservation of an easement as well as an implied grant. The legal and equitable principles are not the same, but similar.

In answering thusly, I assume the sewer line is your own, and not that of a utility, community service district, or the like. If the line had been owned and operated by someone other than you, there would have already been an easement of some sort, and that would remain in effect despite the split and sell-off.

Since writing the first few paragraphs of this response, I have found some additional material. 1104 indeed applies only to implied grants and not to implied reservations. However, courts sometimes recognize implied reservation of an easement, although it is "disfavored." There are some additional requirements, e.g. the grantee must know of the use. Since a sewer pipe is not obvious, your grantee probably didn't know of the use, and thus you may not be entitled to claim an easement by necessity, or by implied reservation, or similar terms.

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