Legal Question in Real Estate Law in California
A & B homes are located at end of 300 ft deeded easement across HOA and C property.
"A" built in 1978 and B built in 2006. "A" purchased from previous owner in 2011. C purchased property in 2003. No other way in or out to A & B. Gravel maintenance cost shared between A, B, C. C has barn on easement and uses. B purchased additional 20 ft easement from C connected to original easement to simplify entrance in 2005. Now A & B want to pave over existing gravel. C claiming existing road has to be moved as it is not in right place by few feet in some locations. It is on side of a hill and too expensive to do. A & B claiming they have proscriptive easement as it has been there since 1978 and existed long before C purchased property. No one ever told A & B that easement in wrong place. Not previous owners, not HOA, not C, and HOA and county who both approved houses being built at the end of the existing easement which is the only way in or out. C never complained before and never blocked uise by A or B or anyone. C has 5 acres and the few feet it may be off is no hardship for C.
All A & B want to do is pave existing gravel easement that has been in use since 1978.
HOA won't approve without C approval. C won't approve unless moved.
What is A & B's recourse against C, HOA, previous owners who did not disclose but it is believed that they knew.
1 Answer from Attorneys
There are two somewhat-related issues here; the right to improve an access easement by paving what was a gravel road; and whether a servient owner can demand that an easement road be moved from where it has been to where the grant of easement shows it ought to be. I think A and B win on both counts.
As to the paving issue, the law in California seems to be that the holder of an easement may make reasonable improvements that do not substantially "overburden" or exceed the intents of the parties at the time the easement was granted. Since you apparently intend only to continue use of the road to access the two houses on A and B, there is no apparent threat of overburden (over-use) of the easement, and I'm pretty sure you win on this issue. See the Miller & Starr treatise on California Real Estate Law, section 15.59 ("The owner of a road easement has a right to grade and pave the surface") and the cases cited therein (six cases; citations upon request).
As to whether the road must be moved a few feet so that its location coincides exactly with the description in the deed granting it, or whether it has become "grandfathered" at its actual location through use and acquiescence, Miller & Starr say at 15.49: "The location of an easement created by an express grant can be altered, or its size or use enlarged, by prescription. For example, if a roadway easement is properly granted to the owner of the dominant tenement, but the route actually used lies partly outside the granted location, when the use continues for the required period of time, an easement can be acquired by prescription over the route actually used outside of the area conveyed." (Citation to Robas v. Allison (1956) 146 Cal.App.2d 716 and Lord v. Sanchez (1955) 136 Cal.App.2d 704.
In light of the attitude being taken by the owner of C, it would probably be advisable to take the owner of C and the HOA to court with a lawsuit seeking a declaratory judgment with respect to the right to pave, and a quiet title claim to establish the existence of the prescriptive easement, and to have a clean legal record as to both matters.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
