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Lawrence, Lawyer
Category: Legal
Satisfied Customers: 22
Experience:  Real Estate transactions lawyer, 18 years, Licensed RE Broker, 14 years
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My Preliminary Title report (Nevada County CA.) shows a ...

Resolved Question:

My Preliminary Title report (Nevada County CA.) shows a easement as:"An easement as designated and so delineated on the parcel map referred to in the description herein FOR: right-of-way AFFECTS: traversing the southerly and easterly 30 feet of the realty herein described" This is in a rural area, there is no road on this easterly border and it is both thick with trees and is steep. The owner of the parcel below me wants to use this right-of-way to get to his property. I believe he has this right BUT my question is 1) who is responsible for making this road and for maintaining it in "in repair" condition. Note that this may cost thousands of dollars to make this road 2) Does the construction of this road require permits and does it need to meet any safety standards or be graveled.
Submitted: 9 years ago.
Category: Legal
Expert:  Lawrence replied 9 years ago.


I answered your first question about the easement, and recommended you check your title report to see if there was an exception for this easement.

I would like to help you with this question also.

The easement is over your land, so your land is referred to as the "servient parcel" or. The easement is in favor of your neighbor so his parcel is the "dominant parcel", with respect to this easement. This easement was expressly created by "statutory dedication" when the original parcel was subdivided to smaller parcels.

The owner of the dominant parcel, your neighbor, has the sole responsibilty to put in the road and a duty to maintain the road/driveway it in a safe and serviceable condition. You have no responsibility for any of the costs of construction of the road or its subsequent maintenance. (Civil Code Section 845).

Your rights, as the owner of the servient parcel, are considered "residual", meaning that you retain the ownership of the fee title to the land over which this easement crosses, subject to the enjoyment of the easement by the other owner. You can continue to use your property in any way that does not unreasonably interfere with the use and enjoyment of the easement by your neighbor. If it is useful for you, you can also utilize the road if the neighbor ever puts it in.

You can claim the wood from the trees that have to be cut, or you can require that they be removed.

The construction of this road would most certainly require a building/grading permit. The level of improvement, such as gravel or paving, width, etc would depend on what the road was serving. If it is to serve a residence, the county would likely require that it be graveled and that it be wide enough and have a turnaround sufficent for emergency vehicles. They would likely require at least a hammerhead at the end so a fire truck could turn around.

If the road was going to serve multipe residences, it may have to be engineered and paved.

You will have to check with your local building department to find out exactly, as these types of requirements differ between counties/cities.

Thank you.


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