LOS ANGELES—Easements are not a fast evolving area of the law—common law has had the basics down for a few hundred years or so. Yet one should never underestimate the ingenuity of neighbors to craft new disputes—and make new law.
In Laurel Canyon in Southern California, Flora Dolnikov had a recorded access easement, granted in 1942, over a neighboring property. Contemplating developing two homes on the property benefitted by the easement, she learned that, notwithstanding the easement, the building department required a new “community driveway agreement” with her neighbor, and she got one. She treated the agreement informally, and did not record it or obtain any title insurance insuring her interests under the agreement. Her neighbor later sold the neighboring property to Dikran Ekizian.
Dolnikov pulled her building permits and began construction of the homes and the access road within the easement. When she went back to the City for a permit for a retaining wall needed to protect the access road, she learned that Ekizian was challenging her right to build the retaining wall on his property.
The City then refused to issue the retaining wall permit without both Ekizian's consent and a new recorded community driveway agreement signed by Ekizian, who declined to execute it. Uncertain that the necessary access would be available, the City required that work on the entire project stop, even though the two houses were framed with exposed wood and no roof.
Dolnikov sued, and a jury found that, while the grant of the easement did not contain language specifically requiring Ekizian to consent to the retaining wall permit, or to sign the community driveway agreement, both were within the scope of the easement and Ekizian was required to cooperate with Dolnikov's use of the easement, even to the extent of signing the permit application and new community parking agreement.
Even more notably, the jury awarded Dolnikov more than $700,000 in damages for Ekizian's unreasonable interference with her easement, even though that interference was not physical, but merely the refusal to cooperate with the required permits. The California Court of Appeals affirmed.
The take-aways:
1) If your property is burdened by an easement and you do not act reasonably, including by cooperating to facilitate activities within the scope of the easement, you could be liable for tort damages.
2) An easement agreement does not have to spell out every incidental right necessary to use the easement. Easements include by implication “secondary easements” to do the things necessary for the enjoyment of the easement itself.
3) If you negotiate agreements that you intend to run with the land, always record such agreements and obtain title insurance insuring such rights.
Lauren Spiegel and Tom Muller are partners of the land use and real estate practice at Manatt, Phelps & Phillips LLP. The views expressed in this column are the authors' own.
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