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Barrister Bits by Debra A. Newby

Easement
On Neighbor’s Property
That Leads to Well

Jul 22, 2019
by Debra Newby, Newby Law

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Dear Debra:

I have an easement to use an unpaved road on my neighbor’s property that leads to my well.  My neighbor does not maintain the road and over the years it has become impassable due to fallen trees and growing foliage.  Does she have any legal obligation to clear the road; or is it my responsibility because I need access to my well?

Signed:  Conflicted Charlie

Dear Charlie,

Easements.  Yes, I know…sounds boring (at first).  But every landowner should care about the general legal principles surrounding easements, as odds are, you probably either have one on your land, or possibly need one for a neighboring land.  This is important stuff.  So glad you asked, Charlie. 

First, I should disclaim that I do not practice real estate law, so if you have a really sticky real estate/easement issue, you should consult with an experienced real estate attorney.  With that said, though, let’s briefly share a brief tutorial about easements, and then we will talk about who has the legal obligation to maintain the easement.

In California, the basic statutory framework for easements is found in California Civil Code sections 801 through 813.  In essence, an “easement” gives an individual (or entity, think utility companies like PG & E or phone companies) the right to go on or through your land.  Sample easements might include the right to fish or hunt, or to take water, wood or minerals.  An easement entitles the easement owner (that would be you, Charlie) to limited use or enjoyment of another’s land, usually in a specified manner or for a specific purpose.  Easements are not a right of occupancy or a right to profit from the land.  

Easements can be recorded in the public real estate records, or an easement may exist without recordation.  Another way that an easement can be created is from a type of “adverse possession”.  This type of easement is called a “Prescriptive Easement”.  The party claiming the easement must prove that the use of the land was open, notorious, continuous, and adverse for a period of five years.  As an example, think about a walking trail across another person’s property that had been used continuously and openly for 5 years or more, without the landowner’s objection or intervention.  

Next, let’s look at who has the duty to maintain the easement.  Typically, the easement holder has the legal right to maintain the easement.  That would be you again, Charlie.  An easement owner must take due care in maintaining the property, keeping in mind the specific and limited use of the easement.  It would be helpful to know, Charlie, if that same road is also used to maintain the well of your neighbor?  This may be important, because if both you and the neighbor use the unpaved road for accessing each of your wells, it may be reasonable for your neighbor to contribute to any costs for maintenance and repair, in proportion to the use of the right-of-way by the two of you.  

With this background in mind, I would like to offer the following practical tips:

1)  Assuming your easement is recorded, secure a copy of the recorded easement and study the language carefully.  Does it address any specific boundaries?  Does it define any specific use or limitation of the easement? 

2)  You will need to get to your well, not only to make sure it is operating, but to also regularly maintain and service it.  Water is the new gold.  You will need to find a way to clear that path, at your own expense.  I would still talk to your neighbor, though, as the clearance of that path may also have a mutual benefit to her, depending on the lay of the land.

Good question, Charlie.  Hope this background is helpful to you, as well as other property owners who may inevitably cross the same path.   

 

Comments:

Aug 19, 2019
VIA EMAIL: Debra and Vesta, thank you so much for researching this for me and publishing it! I've been checking each issue carefully since I posed the question. I'm sure it's of great interest in West County where lots of easements exist. I'm also working hard with Fire Safe Occidental to find secondary egress routes and some of these easements are helping us locate previous "roads" that might help us in times of evacuation, and/or as potential places for fuel breaks. Of course I was sorry to hear that mostly I have the responsibility to clear my neighbor's path, but this is exactly what I needed to know. I'll see what magic I can work to get him to help to some degree with the project. We *so* love the Gazette! --Carolyn Sell
- Vesta Copestakes

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