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New Easement Law Effective January 1, 2013

Legal Update by Peter N. Brewer, Esq.

Many property owners share a common driveway to access their property.  In those circumstances, usually one neighbor owns the actual land the driveway is on and the other neighbor has an easement for ingress or egress. Who pays for the cost of maintaining the driveway?

The law has been that the cost is to be shared by the landowner and the easement owner (“Easement co-owners”).  Unless there is an agreement as to how those costs are to be shared, California’s Civil Code requires the costs to be “shared proportionately to the use made of the easement by each owner.”

When an easement owner refuses to pay for his or her share of the cost for maintenance of the easement, the other easement co-owners may bring suit directly in small claims court.  Before this new law went into effect, the co-owners had to seek a court-appointed arbitrator to apportion the cost.  Now, under the new law, the co-owners are entitled to a finding directly through the small claims court.

The claimants may bring an action for specific performance in the Superior Court.  In that circumstance, the case will be subject to judicial arbitration.  However, in the circumstance where the owner’s share of the maintenance costs do not exceed the Small Claim’s jurisdictional limit of $10,000.00, the matter may be heard in small claims and shall not affect future costs not sought in the small claims action.

[California Civil Code Section 845]

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