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I own a property where a landscape easement was provided to ...

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I own a property where...
I own a property where a landscape easement was provided to the builder when the homes were built in 1977. The easement has never been used and was put in place so that the builder would not have to go to the expense of building a retaining wall that would have been needed. Can I have the easement removed, and push my property line to where it should be if I pay for the expense of the retaining wall?
Submitted: 9 years ago.Category: Real Estate Law
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Answered in 5 hours by:
3/10/2008
Real Estate Lawyer: CALawyer, Lawyer replied 9 years ago
CALawyer
CALawyer, Lawyer
Category: Real Estate Law
Satisfied Customers: 1,655
Experience: Practicing Real Estate Attorney
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Do you think the builder would be willing to deed the easement back to you if you were to take care of this?
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Customer reply replied 9 years ago
Reply to CALawyer's Post: The builder is long gone. I already own the property and pay propety taxes on it... it's a landscape easement that has never been used.
Real Estate Lawyer: CALawyer, Lawyer replied 9 years ago

Do you know if the easement was granted in association with any land (ie., the neighboring property, common area, etc.)?

Do you know who owns that land now?

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Customer reply replied 9 years ago
Reply to CALawyer's Post: I'm not sure I understand your question. The land adjacent to the easement is a common area interest owned by the Lake Park HOA.
Real Estate Lawyer: CALawyer, Lawyer replied 9 years ago
That answers my question.

I was trying to determine if one of the methods of extinguishing an easement has been met called merger. Merger occurs at any time when title to the easement and property which it effects is owned by the same person. If the easement is held by the community, then there hasn't been merger.

The mere non-use of the easement doesn't extinguish it. In order for non-use to extinguish a deeded easement, there would need to be evidence of an intent to abandon the easement.

At this point, for the easement to be extinguished the HOA (assuming they hold the easement now) would have to deed you the easement in exchange for your completion of the retaining wall. It would be up to the HOA to decide whether they want to do this.

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Customer reply replied 9 years ago
Reply to CALawyer's Post: I own the property affected by the easement and I pay the property taxes for it. If the easement has never been used for its intended purpose wouldn't I be able to enclose the property, with an expanded wall at my expense, with HOA permission?
Real Estate Lawyer: CALawyer, Lawyer replied 9 years ago
It would be actionable for you to interfere with the easement without permission. However, if they (as the owners of the easement) gave you permission to do something that interfered with the use of the easement, then that would constitute an abandonment that terminates the easement.

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Customer reply replied 9 years ago
Can you give me the staute regarding that so I can prepare a presentation to the upcoming board meeting? Where are you located?
Real Estate Lawyer: CALawyer, Lawyer replied 9 years ago
The statute is California Civil Code section 811. It is provided in full below:

I've bolded the relevant portion.

Civil Code

CC § 811. Extinguishment of Servitude

A servitude is extinguished:

1. By the vesting of the right to servitude and the right to the servient tenement in the same person;

2. By the destruction of the servient tenement;

3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or,

4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.

I am in Northern California about 250 miles north of San Francisco.

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