Legal Question in Real Estate Law in California

Look, it really depends on the facts. I have litigated easement issues, and have litigated against cities. What kind of work do they expect you to do?

Best,

Daniel Bakondi, Esq.

The Law Office of Daniel Bakondi

870 Market Street, Suite 1161

San Francisco CA 94102

www.danielbakondi.com

[email protected]

415-450-0424

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Bakondi's answer is wrong. It doesn't depend on any facts, unless the grant of easement expressly states that the grantor will maintain the easement. Otherwise, it is a legal question. Under the general law of easements the servient tenement owner has no obligation to maintain the easement, only not to interfere with it. I have not researched if there is an exception to this rule for public entity easements, but I doubt it. Ask the city for the legal authority for their claim, since it is completely contrary to hundreds of years of general easement law. Bear in mind, however, that city building codes often require sidewalks and curbs in front of houses, or other similar things be constructed and maintained on properties in the jurisdiction, and those may or may not be located within an easement. That is not the same as requiring you to maintain an easement. That is a land use regulation.

In easement situations, we have a benefitted party and a burdened party. We have the owner of the easement and the owner of the property upon which the easement is situated. The legal terms are the "dominant tenement" (the benefitted parcel) and the "servient tenement" for the parcel upon which the easement lies. Here, the City has the dominant tenement and your land is the servient tenement

When ABC has an easement on XYZ's land, each has certain rights and responsibilities. Speaking very generally, ABC, the party benefitted by the easement (in your case, the City) has the responsibility to maintain the easement. If the easement is a roadway, for example, ABC, the user/benefitted party, (the City) will be responsible for patching the pavement, keeping the ditches flowing, and that kind of thing.

And on the other hand, XYZ, the owner of the property burdened by the easement, also has certain responsibilities, although these responsibilities are not what one would ordinarily think of as "maintenance." XYZ (you) must avoid doing anything on the portion of XYZ's (your) land affected by the easement that unduly interferes with the City's use of the easement for intended purposes.

For example, if the City has an easement for utilities, you probably cannot pave over the ground, because that would unduly interfere with the installation and maintenance of water lines, sewers, etc., and if the easement were for a roadway, there would be a question as to whether you could install gates. You'd at least have to furnish the City with keys to any locks, and possibly could not install gates at all unless you had a legitimate need to do so that overcame the nuisance to the City of having to stop to open and close gates, such as you were raising livestock on the property and needed to fence them in.

There has been a lot of litigation over the rights of easement holders versus the rights of owners of the servient tenement, and courts have generally tried to decide such cases on the basis of whatever's fair, in view of the parties' or their predecessors' intentions at the time the easement was created. For example, an easement granted for light traffic to access a single-family residence on ten acres cannot be used, later on, for heavy traffic to and from a 20-parcel subdivision of the original single-family residence into half-acre lots.