Felise Eber News

Easements May Create Rights and Duties That Are Not So Obvious

Written By: Bob Hunt
Friday, April 11, 2014

When an easement over someones land is granted, it creates rights and duties for both parties. These are not always obvious. A recent California appellate decision Dolnikov v. Ekizian, Second Appellate District, December 10, 2013 sheds light on the principles at work.

Before turning to the facts of the case, a word about the terminology. Suppose I grant you an easement to use a path to and from the beach through my property. If only I actually owned such a property... In that case you would be known to lawyers as the owner of the dominant tenement. You would be the dominant owner. I would be the owner of the servient tenement. I would be the servient owner. This may sound a bit counter-intuitive, because one might think that the person who grants the easement is in the dominant position. But, as law and tradition have it, the easement burdens the land affected. Thus the beneficiary is the dominant owner.

In the case at hand, Flora Dolnikov was the dominant owner. She had purchased two undeveloped lots 29 and 30 of Tract 4202 in an area above Lau>

In 2001, Ms. Dolnikov obtained permits to construct two houses on the lots. The permits were issued with the understanding that access would be provided over the 14 easement, even though the zoning code required a 20 width.

While construction was in process, Lot A was sold to an investment company owned by Dikran Ekizian, the defendant in the case. Mr. Ekizian had full knowledge of the easement and of Ms. Dolnikovs development.

According to the court record, "The slope of the easement was too steep and the right-of-way had fallen into disrepair so that all that remained of the original pavement was substantially covered with dirt and rocks from uphill. As such, the easement was unsuitable for ingress and egress to plaintiffs property." A grading plan "to lower the ground in the upper end of the easement" was approved by the Department of Building and Safety. "To stabilize the slope, the grading plan called for a retaining wall to be constructed across the face of the cut along the Lot A side of the easement..."

Later, it was discovered that no permit had actually been issued to construct the retaining wall. The building department then required signatures from Ekizian in order to issue the permits. He refused. A stop-work order was issued, leaving the houses uncompleted. Naturally, a lawsuit followed.

The original trial was separated into two actions. At a bench trial without a jury, the court found that the grading and retaining walls "were necessary for the use of the easement for its expressly intended purpose..." Nonetheless, Ekizian continued to refuse to sign.

At the jury trial, Dolnikov the dominant owner, remember? was awarded slightly over 713,000 in damages, and "the court ordered defendants to sign the necessary forms, if and when requested." The defendant appealed.

The Appellate Court upheld the judgment of the trial court. In doing so it reviewed a number of cases involving easements. Without including the lengthy citations, the line of reasoning went like this:

"Every easement includes what are termed secondary easements; that is, the right to do such things as are necessary for the full enjoyment of the easement." "A secondary easement can be the right to make repairs, renewals and replacements on the property that is servient to the easement." "A right-of-way to pass over the land of another carries with it the implied right...to make such changes in the surface of the land as are necessary to make it available for travel in a convenient manner." And, finally, "Actions that make it more difficult to use an easement, that interfere with the ability to maintain and repair improvements built for its enjoyment, or that increase the risks attendant on exercise of rights created by the easement are prohibited."

The court noted that the respective rights and duties are limited by a "rule of reason." "Given that reasonableness depends on the facts and circumstances of each case, whether a particular use of the land by the servient owner... is an unreasonable interference is a question of fact for the jury." In this case, "Plaintiff acted reasonably in grading and seeking to install the retaining wall..." "In contrast, Ekizians refusals to sign constituted an unreasonable interference with plaintiffs use and enjoyment of the easement."

The judgment stands.

Bob Hunt is a director of the California Association of Realtors. He is the author of Real Estate the Ethical Way.





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