Legal Question in Real Estate Law in California
Possible to Nullify an Easement?
In 1999, we bought a residential property that encompasses an easement, described in the title as being for the purpose of ''roads''. We had read the title at the time of the purchase and were aware of the easement. The easement belongs to an adjacent vacant property. Although we've offered to buy the property, the owner is considering selling it to someone else who plans to build a house. We are concerned that construction of the access road will severely degrade the value of our own property; construction of the road would require major regrading of the land (partially filling a natural canyon area) and destruction of a number of mature trees on our property. Is there anything we can do to prevent the construction or to get compensation if it were to occur? Also, the easement was granted more than 30 years ago and has never been used. In fact, the current owner built a chainlink fence across it (roughly at the time the easement was recorded) and accesses his property from another direction. Is there any way to nullify the easement on the basis of the blockage and lack of use?
2 Answers from Attorneys
Re: Possible to Nullify an Easement?
It may be possible to nullify the easement; you would have to show abandonment. This may not be the case since the land has not been developed yet. A negotiated settlement may result if you file to quiet title as the owner may wish to avoid litigation. Please call me directly at (619) 222-3504.
Re: Possible to Nullify an Easement?
California has a well-established statutory procedure for an action to establish abandonment of an easement and clear title. See Civil Code sections 887.010 through 887.090.
You may run into difficulty in removing this easement due to either of two factors. First, if the property would be 'landlocked,' i.e. have no other access if the easement were removed, there may be a policy objection to granting a plea for recognition of abandonment. A possibly more serious problem is found at 887.050(a)(3), which appears to prevent use of the procedure to remove an easement of record.
You should show your deeds, etc. to a local real estate attorney (ask for an initial free consultation) to get an opinion on whether you are thus barred from filing such an action.
Another way to remove the easement is to acquire the other parcel. Easements are extinguished by merger of the dominant and servient estates. You could then subsequently re-sell the parcel, but lack of access would affect its value. Again, consult a lawyer as to whether a sufficient merger of estates would result from the purchase to accomplish your intended result.
A final possibility is negotiation with the other owner. If there is any other way to access the parcel, maybe you can buy back the easement.
Oh, also, keep in mind that a grant of an easement for a road does not necessarily imply grant of the right to build a superhighway. The beneficiary of the easement cannot overburden it with substantially greater improvements or use than was intended at the time of the grant. An attorney with appropriate experience could advise you on what kind of construction might be permissible and what could be construed to be an overburden.
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