Legal Question in Real Estate Law in California

Encroachment on private street
We live on a private street; there are about 15 homes on the street. The street is comprised of a series of easements across one lot, then the next, up to the top. The easement is actually rather wide, but homeowners have gradually encroached on the easeements over the years. Many homeowners have planted trees or other landscaping, as well as some hardscaping (planters, entry monuments, etc.) In some spots, the street has gotten so narrow that it is almost impossible to drive up the street if a car is parked on one side or the other. Is there anything that can be done, short of suing neighbors who are encroaching on the right of way? Unfortunately, the owners on our street have trouble coming to a consensus on anything. We can't even come to agreement over the maintenance of our street, thus, the asphalt is in terrible condition; I've lived here for nine years and the street has never even been resurfaced. I can guarantee that most of the neighbors would not willingly remove the improvements they have done in the right of way.

Asked on 12/03/04, 1:05 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

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Re: Encroachment on private street

Well, first, encroachment on an easement by the owner of the so-called "servient estate" (i.e., the property upon which the easement lies) is a fairly technical factual and legal issue, not like the situation of a trespasser encroaching. An easement is a fairly limited right; it is a non-exclusive, non-possessory estate (to use some legal parlance).

In other words, the property owner is not absolutely prevented from making other uses of his land underlying the easement.

A court would look at whether the landscaping, gates, fences, etc. installed by each neighbor along the roadway interfered unreasonably with the easement-holders' rights, bearing in mind the purposes for which the easement was granted (or reserved) in the first place.

The court might allow some of what you call encroachments to remain in place, finding that they do not abridge the easement-holders' rights to any significant degree. It might also order some of them to be removed altogether, or to be cut back so as to reduce the interference. It's all a balancing act.

As to the maintenance, all users of an easement must contribute to its maintenance in proportion to use or some other such measure. I suspect that if (absent any agreement among the easement holders) a significant group of owners went ahead and had the repairs done, then sent the reluctant owners a well-documented pro-rata bill, a court would enforce a payment obligation. Consensus beforehand is always better, of course, but if it got to an emergency situation some owners could do the work (getting competitive bids first) and expect reimbursement. I also recommend re-reading the deeds, easements and CC&Rs to be SURE what is said (or left unsaid) about road maintenance.

Answered on 12/04/04, 12:42 am

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