Repairing shared driveways
On my way to a family member’s house in a small subdivision just
beyond the Hollister city limits, I found myself trying to weave my
way over a patchwork-paved road that was in extreme disrepair in
order to avoid as many potholes as possible, many of which were at
least four to six inches in depth. As my truck swerved back and
forth and bobbed up and down through a stretch of road that looked
like it had been the target of a small meteor shower, I caught
myself thinking about who was responsible for repairs and
maintenance.
Repairing shared driveways
On my way to a family member’s house in a small subdivision just beyond the Hollister city limits, I found myself trying to weave my way over a patchwork-paved road that was in extreme disrepair in order to avoid as many potholes as possible, many of which were at least four to six inches in depth. As my truck swerved back and forth and bobbed up and down through a stretch of road that looked like it had been the target of a small meteor shower, I caught myself thinking about who was responsible for repairs and maintenance.
It turns out that the family member who owned a house along the dilapidated road was as confused as I, knowing only that the road was constructed over an easement that had been given to all of the homeowners in the subdivision. However, he was not clear about the importance of the easement, and knowing that I am an attorney, he had a couple of follow-up questions for me.
Q. What exactly is an easement?
A. An easement is an interest in someone else’s property. An easement is the right to use the land of another for a specific purpose. The property that is served by the easement is the dominant tenement, and the property upon which the easement actually lies is the servient tenement. In most cases, an easement is expressly created by a grant deed, which is recorded in the chain of title of the dominant and servient tenements. The recording serves to provide notice to parties who subsequently obtain an interest, the dominant or servient tenements.
Easements such as the one described above usually arise when one property is subdivided into two or more parcels and sold to different parties. Generally, if after the subdivision only one parcel has access to the public road, then the subdivider will be required (usually as a condition of approval) to provide the newly created parcel(s) without access (also referred to as a “landlocked parcel”) with an easement over the parcel with access to the road. Otherwise, without the easement, the owners of the landlocked parcel will have no means to lawfully enter or leave their property.
Q. Who is responsible for repairing an easement?
A. In most cases, the responsibility for maintaining, repairing, or improving as well as the associated costs depend on whether or not there is a written agreement that delegates those duties amongst the property owners. Generally speaking, the owner(s) of the property upon which the easement lies, as well as the owners who use the easement are responsible for maintaining and repairing it. California Civil Code Section 845(a) states: “The owner of any easement in the nature of a private right-of-way or of any land to which any such easement is attached, shall maintain it in repair.” There is no legal obligation to improve an easement.
In the absence of a written contract, California Civil Code Section 845(c), requires that “the cost shall be shared proportionately to the use made of the easement by each owner.” In other words, costs of repairs and maintenance of an easement shall be paid by the property owners according to the amount that they use it. If both Parcel A and Parcel B use an easement, and Parcel A contains a shipping business while Parcel B is the home of an elderly couple with only one car, then Parcel A will have to bear a majority of the cost to repair and maintain the easement.
However, because the statute does not address the issue of easement improvements, or that in most easement situations it is difficult to determine the exact percentage of use by the dominant tenements, it would be best for the property owners owning and using the easement to enter into a written agreement that spells out the repair and maintenance obligations. California Civil Code Section 845(b) states, “[i]f the easement is owned by more than one person, or is attached to land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land . . . pursuant to the terms of any agreement entered into by the parties for that purpose.” A binding maintenance agreement that clearly sets out for the landowners all of the obligations and procedures regarding repairs and improvements as well as cost sharing will help minimize confusion and disputes relating to the easement.
Q. What types of easement-related issues would a maintenance agreement cover?
A. Generally, two or more parties can enter into a contract for any legal purpose. A maintenance agreement is a legally enforceable contract that identifies the property owners to be bound, contains a metes-and-bounds description of the easement, and also provides a description of the repair and maintenance obligations of the property owners who become a party to it. Once the maintenance agreement has been signed by all of the parties, it will be recorded in the chain of title for each property that will be subject to the agreement.
Since the agreement will likely be in effect as long as the easement exists, even through change in ownership, the scope of the easement should be broad enough to address any potential issues that may come up, depending on the situation.
For more information on easements, or for assistance with an easement-related matter, please call Paul Rovella or Gini Hines at Lombardo & Gilles, LLP at 754-2444.
