UNDERSTANDING EASEMENTS IN REAL ESTATE Part 5: Disputing Location and Scope of Use

As covered in my previous Articles on Easements, an easement, “is the right to use the land of another owner (or the right to prevent another property owner from using his or her land) for a special purpose.” It is not an ownership interest in land but, rather, a non-possessory interest in the land of another. The right to use the land of another can be created by written agreement – Easements and Licenses – or by usage over time – Prescriptive Easement.

However, even when such use is agreed upon, the easement is limited in its scope to that intended by the parties. For example, an easement owner may not materially increase the burden of the easement on the servient estate or impose a new burden beyond that identified in the conveyancing instrument. “Normal future uses” of the easement that are within the parties’ reasonable contemplation are therefore permissible, while “uncontemplated abnormal uses,” which greatly increase the burden, are not. Obviously, determining whether this is “reasonable” or not can be the subject of intense litigation.

For example:

Location: The location of an easement may be implied from “use and acquiescence”. Often, an easement is merely described such as “Able has an easement to cross the land of Baker” but it lacks any specific survey of where Able may cross Baker’s land. Over time, by useage, the easement area becomes relatively if not precisely apparent. Unless specified differently, Able would only have a single easement so he could not reasonably cross Baker’s land in different places each time. On the other hand, if Baker did nothing to stop this, then absent some agreement between them, a Court would have to order where Able’s easement would actually be located.

Scope of Use

Ingress & Egress: Another common dispute concerns how the easement is being used. Easements for “ingress and egress” are common to connect Able’s landlocked Parcel to a main road on the other side of Baker’s Parcel. But how can Able use this land? If Able’s Parcel has a home, then the reasonable use of the driveway would be for a driveway for Able (or his successors).
Construction: But if Able was seeking to build a home on his Parcel, that would typically require use of heavy equipment and many vehicles to travel on the easement causing noise, dust, and other possible disturbances to Baker. Generally, if the reasonably expected use of Able’s land was for residential purposes, Baker would not be able to stop Able’s construction, especially since it would be limited in time.
Subdivision: A different problem arises when Able seeks to subdivide his Parcel into numerous smaller lots and build homes on each. Not only does this substantially increase the disturbance to Baker during the construction period, but more importantly it permanently increases the number of vehicles crossing Baker’s Parcel. Is this permanent increase beyond the reasonable scope that Baker anticipated? This may take a Court to decide.
Change of Land Use: Similarly, a different problem would arise if Able were to change the land use, for example from residential to industrial or logging. This might not only dramatically increase the number of vehicles crossing Baker’s land but also allow larger and more noisy vehicles. While this might reasonably be beyond the use that Baker expected, a determination would be required as to whether Baker’s opposition was in fact reasonable. Did he know that Able planned on industrial use? Is this the “highest and best use” of Able’s land?


Litigation: As referenced in my September, 2016 Article on Enforcement, if a dispute between Able and Baker on the use of the easement cannot be informally resolved, one of the parties will likely file a lawsuit to specifically define the location of the easement and to enforce or stop the intended change in the scope of use. This would start with the filing of a Complaint in Superior Court typically requesting the Court to issue “Declaratory Relief”, i.e: an Order identifying the rights and obligations of the parties. In doing so, Able might record a Notice of Pending Action (also called a “Lis Pendens”) giving public notice of his claim. This could be especially important if Baker is in the process of subdividing or selling his Property. Able might also seek a Restraining Order and Injunction compelling Baker to allow his use during the course of the litigation. Baker, of course, would raise several defenses in seeking to defeat Abel’s Complaint. The primary approach would be challenging the validity of Abel’s facts and the reasonableness of his usage. Eventually, a Judge would make a decision as to the location and use of the easement and this Order would be recorded to create an enforceable written document, equivalent to a deeded Easement.

Alternative Dispute Resolution: Although no party could be compelled to use any process other than litigation, very often the parties find that a resolution can be achieved faster and at less cost by going through an Alternative Dispute Resolution process instead. This typically has two stages:
1. Mediation: In Mediation, the parties (often with their attorneys) with a trained Mediator who will seek to assist the parties to reach some mutually acceptable resolution and thus avoid the costs and uncertainties of litigation or arbitration. If such a resolution is reached, the result is generally a signed and recordable Agreement resolving the dispute. It is important to understand that Mediation is an “assistive” process only. The Mediator has no authority to make any decisions or issue any orders. Further, what is discussed in Mediation remains confidential and cannot be used against the other in later proceeding.
2. Arbitration: If Mediation efforts are unsuccessful, the parties then have the choice of proceeding to court-based litigation or to binding Arbitration (often called “private court”). While Arbitration has many pros and cons compared with litigation, its best features is the potential for a faster resolution and a lower cost than court proceedings. An Arbitration “Award” can be converted to a Court Order and be equally enforced. On the other hand, there is no right to a jury trial or appeal process available.

For over 20 years, the attorneys of BPE Law Group, P.C. have been advising and representing property owners and real estate professionals in dealing with their legal concerns including easements and other land-use issues. Our major areas of practice include: Real Estate, Business, and Estate Planning. We do business primarily in California although our clients are world-wide. Check us out on the Web at: www.bpelaw.com. If you would like a consultation with us, please call our office at (916) 966-2260 or e-mail me at sjbeede@bpelaw.com.

This article is not intended to be legal advice, and should not be taken as legal advice. Every case requires review of specific facts and history, and a formal agreement for service. Please feel free to contact us if you need legal advice and are interested in seeing if we can help you.