USE IT OR LOSE IT. TAKE YOUR PROPERTY INTEREST. SERIOUSLY.

 Two recent California appellate court decisions on easement property rights show the need to : 1) actively pay attention to the nature of your easement; and 2) act assertively and reasonably to accommodate your neighbor's easement rights.  Rye v. Tahoe Truckee shows the importance of being careful to protect your property interests by not letting your easement interest lapse.   Dolnikov v. Ekizian demonstrates the costs of refusing to act when a reasonable request is made to improve an easement over one's property.

Use it or Lose it #1:  Don’t abandon an property interest by letting it lapse.

Rye v. Tahoe Truckee Sierra Disposal Company, Inc., (No. C067970, Third Dist. Dec. 16, 2013), is a tale of a dispute between a garbage company and a wood chipping entity in one of the world’s most expensive and beautiful places, Incline at Tahoe.  The dispute regarded an easement granted by plaintiff’s (Rye) predecessor to defendant Tahoe Truckee.  The easement was for the parking of Tahoe Truckee’s garbage trucks and storage of garbage bins.  Tahoe Truckee had reserved an easement for “"easement for parking, ingress, egress, utilities and storage”

The language then, was not clear as to the extent of the easement and the two maps that had been recorded were not consistent.  For 10 years, Tahoe Truckee had only used a paved portion of the potential easement area.  When Tahoe Truckee attempted to assert control over additional areas arguably within the original easement, the plaintiff contended that Tahoe Truckee had essentially abandoned the additional area by not using it.  The Court of Appeals agreed with the plaintiff. “In this case, there is no clear indication of an intention to extend parking and storage to all of the area subject to the easement ….. and the only evidence of the intention of the parties regarding the use of the easement is past usage and that was confined to the paved area….” 

To add insult to injury, the court also ruled against the defendant regarding the validity of a lease for the same area.  After the easement had been granted, the plaintiff’s predecessor and Tahoe Truckee entered into a lease for an area that was arguably larger than the easement. But Tahoe Truckee never used the area identified under the lease, nor did it pay taxes on the property as set out in the lease.  The court held that “in this case the leased area was never used by Tahoe Truckee, under a claim of right as a tenant under color of the lease, for the entire period from its inception” until the plaintiff acquired the property.  The court’s ruling meant that Tahoe Truckee was limited to the historic use of the paved area. 

In Dolnikov v. Ekizian (No. B226675, 4th Dist. Dec. 2013), the 4th District addressed whether a servient tenant who impeded the dominant tenant’s efforts to reasonably repair and manage its easement could be held liable for interference with the easement.  The dominant easement owner (Dolnikov) had been told by the City of Los Angeles that he needed to repair an access road to be able to add a second unit.   Dolnikov then proposed grading and improving a retaining wall as necessary incidents of the easement for ingress and egress.   The servient tenant (Ezikian) though would not play ball with Mr. Dolnikov and made a : (1) refusal to sign a covenant for community driveway; (2) refusal to sign a retaining wall permit; (3) demand for money in exchange for granting plaintiff rights she already possessed in the easement; and (4) statements that plaintiff lost her easement by creating the grading cut and burdening the easement.  

Two trial court decisions found Ezikian’s actions unreasonable because Dolnikov was entitled to make the cut and build the wall in furtherance of her rights and her full enjoyment of the easement. Plaintiff acted reasonably in grading and seeking to install the retaining wall to prevent defendants' land from eroding onto the roadway. 

The appellate court upheld.  Even though Ezikian did not physically invade the easement, the court held that a refusal to sign documents, could constitute an interference with the easement.  Defendants responded in supplemental briefing that the easement did not require them to sign either document and there is no legal authority for the contention that defendants' refusal to cooperate constituted an interference with plaintiff's use and enjoyment of the easement. But the court cited substantial case law that held that "Every easement includes what are termed 'secondary easements;' that is, the right to do such things as are necessary for the full enjoyment of the easement itself." (North Fork Water Co. v. Edwards (1898) 121 Cal. 662, 665-666.)  A secondary easement can be the right to make "repairs, renewals and replacements on the property that is servient to the easement" (Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38, 43.