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Richard Price, Esq
Richard Price, Esq, Attorney
Category: CA Real Estate
Satisfied Customers: 59
Experience:  Attorney at The Law Office of Richard Samuel Price
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I have an easement through my neighbor's property, and I

Customer Question

I have an easement through my neighbor's property, and I would like to start using it. The easement pre-existed a driveway that was added to my property just before I bought it. It was originally the only access/egress point from my property to the road.
I have not used the easement since moving here, in 2003, but due to changing circumstances, now have need of it. My neighbor had a gate across the easement when I moved in, and I never challenged it, because I never intended to exercise my rights. He has animals
that roam freely on his side of the property. I would like to know my rights/responsibilities regarding use of the easement. Have I given up my right to use it by not doing so? If not, and if I start using it, what (if anything) am I required to do to start
using it? When I first moved in, my neighbor commented that I would have to pay to maintain the road if I used it. Is this accurate? Do I have to make certain allowances or accommodations for his animals, or is the responsibility on his side to ensure they
don't block my way? (I.e, I have no trouble opening and closing gates, but what do I do if he locks a gate?)
Submitted: 1 year ago.
Category: CA Real Estate
Expert:  Richard Price, Esq replied 1 year ago.

The very first thing that you should do is to sit down with your neighbor and discuss your needs to use the easement and understand your neighbor's needs regarding the animals. You will probably come to an arrangement that keeps away hard feelings and fosters mutual respect. Try to work things out on your own.

If you're not able to sit down and come to an agreement of your mutual rights and responsibilities, then offer to go to mediation to help settle your differences. There are free and low cost mediation services that will settle neighbor disputes.

The last thing that you want to do is litigate this issue. It's emotionally taxing and financially draining. That should only be a last resort.

Okay, now to answer your questions: If the easement is in writing, then the terms of the written agreement will control. If you don't have a copy of it and it is recorded, then ask your title company for a copy. There is a procedure for your neighbor to extinguish the easement, but that requires a lawsuit. So most likely you have not waived your right to use the easement, even though you haven't used it and the neighbor put a gate across it. Since you are the dominant tenement, you are responsible for maintaining the easement. You can start using it now, but again, I would urge you to have a conversation with your neighbor first. People get weird about others driving across their property unannounced. It is okay for your neighbor to put a gate across the easement, but not okay for him to lock it without giving you a key. When using the easement, you must take care not to damage your neighbor's property, including his animals.

Customer: replied 1 year ago.
I understand, but my question is not about my relationship with the neighbor, or about litigation, but about my rights and responsibilities re: the easement. For example, what does "maintain" entail? It is currently a dirt road that goes through my neighbor's property. He frequently drives heavy equipment (a front loader) on it. If he uses it 90% of the time and creates damage on it, am I still responsible for maintaining it?When I first moved in, he asked me to relinquish my rights to the easement. I told him that I didn't have a problem doing so, but that I was not willing to pay half of the legal fees necessary for him to file the paperwork, as the benefit would be solely his. The issue was never brought up again, so I am sure that the easement is still legally viable. I had just heard through "scuttlebutt" that if you didn't use an easement for "x" number of years, that your right to it would be considered abandoned. It sounds like this is not the case. I will, however, take your advice and get a copy from the title company.Prior to me moving in, the previous owner used the easement, so this would not be a new situation for my neighbor.
Expert:  Richard Price, Esq replied 1 year ago.

Your rights and responsibilities re: the easement are exclusively about your relationship with your neighbor and the way to enforce any of your or your neighbor's rights and responsibilities is with litigation. Which I'm advising you to avoid.

If your neighbor damages the road, then he will have to repair that. All normal wear and tear, you will have to maintain. But again, this is a discussion you should have with your neighbor about who will do what.

Yes, there is a procedure for your neighbor to have the easement extinguished and there are multiple theories depending on the facts and circumstances, but an extinguishment of the easement requires a judge's ruling after litigation. He can't just declare that you gave it up and block you from using it.

I can tell you about your rights and responsibilities and of your neighbor's, but ultimately to enforce any of this, you and your neighbor will have to litigate. What do you do if you want to use the road and your neighbor puts a lock on the gate? You can't just cut the lock because now you're in the wrong. People do things that are unlawful and rather than resort to self-help, the rule of law requires you to go to court to settle your differences. That's why I explained a hierarchy of escalating dispute resolution: (1) try to resolve it on your own, (2) offer mediation, then (3) sue him.

Customer: replied 1 year ago.
With all due respect, I understand that enforcement of my rights/responsibilities is a different matter; however, without knowing what my rights and responsibilities ARE, I can't go into any discussions with my neighbor about my use of the easement. For example, if he claims, during the discussion that in order to "maintain" the easement, I have to pave it (absurd, but just an example), or if he claims that he can put seven locked gates between me and my house as long as he provides me with seven unique keys, etc. and so on, without knowing where I stand legally on the use of the easement, I can't even begin a counter proposal.If you can't directly answer that question, perhaps you can point me to the section(s) of real estate law related to deeded easements so that I can look it up for myself?
Expert:  Richard Price, Esq replied 1 year ago.

I'm sorry if I haven't given you the answer that you wanted. I've tried to answer your questions and give you a broader understanding of how best to proceed with this issue. You've asked what you think is a direct question: what are my rights and responsibilities as a dominant tenement of an easement. But there is no quick and easy answer to that broad question.

Your rights and responsibilities are contained within the easement document, as I've already advised you.

There is not one statute or even a set of statutes that I could point you to about the laws of easements, and even if I did point you to a statute or even a case, it would not contain all the law regarding easements. Easements combine contract law with real estate law and most of it is common law going back to the days of Medieval England. If you want to look up the law on your own, then I would tell you to go to your local law library and read a treatise on easements, such as CEB California Easements and Boundaries: Law and Litigation, for a fuller understanding.

There are a thousand different hypotheticals that could happen, but the law on any one of them depends on the facts.

I wish that I could help you more, as I've tried to be as thorough as possible in my responses to you.

Customer: replied 1 year ago.
Thank you. Your responses have all been, basically, related to maintaining a relationship with my neighbor, and not related to the question I asked. At one point, you stated, "I can tell you about your rights and responsibilities and of your neighbor's...." but your last response indicates that this is not the case, either. Perhaps the answer is, as you state, too broad to be covered in this type of a forum, but if so, it would have saved us both time if you had just said so at the beginning, rather than assuming I was in some sort of neighbor dispute about the easement (which is not the case). In short, it isn't that you didn't give me the answer that I wanted, but that you gave me an answer to a question I didn't ask. Consequently, I can only come to the conclusion that you can't answer my question.
Expert:  Richard Price, Esq replied 1 year ago.

I wish you good luck. I'll opt out and remove my answers so that you can ask again of another attorney. Thank you.