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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Have an easement -live in the back house -the mainwaterline

Customer Question

have an easement -live in the back house -the mainwaterline is also underground of the easement. Front property owners later put driveway without consent. Now waterline is busted and must dig up driveway to fix or move waterline and water meter($10,000).Can
I force them to cut or dig up driveway? And at whose expense?
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 11 months ago.

Dear Customer,

Absent a written agreement, the parties to an easement share the cost of maintenance and repair.

In this case, the party with the "dominant parcel" (the one receiving the water) is going to be responsible for the cost of the water pipes (they cannot require the servient parcel owner to pay for their water supply).
The cost of repairing the driveway following damage to the driveway secondary to the pipeline repair however is going to be split between the owners. The Dominant Parcel has an obligation to make reasonable repairs, but this cost of repair does not increase with improvements made by the Servient Parcel. (So while the servient parcel may have a right to have the property returned to the condition it was originally, they are not entitled to additional paving, or other surfacing, at an increased cost.

However, as a practical matter, if this cost is relatively low (most contractors will figure this into their service), the servient property will cover this cost as well - it is only when the dominant parcel owner becomes overly greedy (asking for excessive repairs (or even improvements to their land) that most disputes arise.

If you cannot reach a resolution between the two property owners, you can sue one another in small claims court and get what is called a "declaratory judgment" where a judge will issue a ruling telling you exactly what each party owes under the terms of the easement.

Short of filing a lawsuit, you can try to mediate the dispute with them - contact your local bar association and request referrals to mediators, a third party neutral can often help you reach a mutually agreeable resolution. Use the bar association's referrals to contact a mediator or two, the mediator will then contact the other party to set up a mediation session, and you can go from there - hopefully resulting in a formal or written settlement agreement, and save yourself the time and expense of litigation.

Customer: replied 11 months ago.
driveway was originally dirt. Can the driveway return to dirt end of story with no obligation to back house? or if driveway is surgically cut to allow fixing of pipe must the back house have approval of the front house to do this .
Expert:  CalAttorney2 replied 11 months ago.

The servient easement (the front house in your situation) does not have an obligation to get approval from the dominant easement to make improvements to the property.

(The dominant easement is only entitled to the rights and privileges stated expressly in the easement (I would speculate that your easement states that there is a right of access for a water line - and nothing more, it would be incredibly rare that architectural design, improvements, or anything else would be included).

The cost of repairing this improvement following the dominant easement's repairs is what really is your issue - i.e. who is responsible for repairing the paved driveway (I assume there is no dispute that the dominant easement (back lot) is required to pay for the full cost of returning the property to its "original" condition - i.e. dirt road). As I noted, in most cases, unless something truly ornate was done (such as decorative concrete work, expensive pavers, or some unusual work that is truly exhoribinately expensive - the dominant easement is still going to pay for this (so if all that is at issue is covering over a small section of trenching with blacktop, expect the back lot to pay for it). If there are unusually expensive improvements (such as the improvements I noted above), the back lot can argue that the front lot should pay for these costs of repair as the improvement somehow has "impaired" their easement.

Get an agreement between the parties before chopping up the driveway if at all possible. If you cannot reach an agreement, try a mediator.

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