Legal Question in Real Estate Law in California

Vacate an Easement

In March 1998, the City of Vista obtained an 20 foot Easement to run a sewer line thru my property, it was giving to them from the previous owners. Additionally, they were giving another 10 foot Easement as a ''Temporary Construction Easement'' for a total of 30 feet which expires 30 days from when the work begins.

Here's the problem, it has been 8 1/2 years and they have not started the work or even know if they ever will because the land owner behind me will not give them an Easement through his land. The City tells me they are not willing to remove either easement. Since it has been 8 1/2 years of non-use, do I have any recourse to have these easements removed? Or can they have a temporary 30 day easement from the date the work starts go on forever?

Thank you,

Scott

Asked on 9/12/06, 6:16 pm

3 Answers from Attorneys

Joel Selik www.SelikLaw.com
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Re: Vacate an Easement

I would want to see the language, but you may be able to go into Court and have the temporary easement revoked for lack of use in reasonable time.

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9/12/06, 7:03 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: Vacate an Easement

Easements are usually permanent.

Easements can terminate under at least a half dozen different legal theories:

1. Due to the happening of a terminating event specified in the grant or reservation, such as that written into the ten-foot easement in your case;

2. Abandonment in fact; however, it takes more than non-use to show abandonment;

3. Statutory "abandonment" under Civil Code section 887.010 et seq. through nonuser over 20 or more consecutive years (and this provision is inapplicable to government-owned easements);

4. Failure of a condition subsequent;

5. Merger of the benefitted and burdened estates;

6. Prescription (inapplicable against the interest of a governmental entity); and

7. Termination of express purpose.

There are one or two other ways in which an easement is extinguished. Some of those cited above appear superficially to be very much alike, but in practice it can take very different fact patterns to establish each.

I think your chances of establishing that either easement has terminated under any of the theories is a long shot. You could perhaps make an argument for #4 and #7 that would rise above the level of a malicious prosecution, but showing failure of a condition subsequent (#4) would depend on reading into the easement language reading something like this: "This easement is granted on the condition that it be used for the purpose of contsructing and operating a sewer pipe thereon." I doubt that it says that; at most, it will say something like "The easement is granted for sewer construction, operation and maintenance purposes" which makes the sewer use permissive, and not a condition of the easement.

Proving #7 would probably require showing that there is no realistic possibility that the sewer will ever be built, e.g. if all the parcels to be served by it were placed in a permanent agricultural preserve or something of that sort.

You maybe should consult with a local real estate attorney, but finding one that really understands termination of easements may not be easy.

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9/12/06, 7:24 pm
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES
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Re: Vacate an Easement

You may have grounds for removal based upon the fact that it is a burden upon your title, and it is apparently not necessary. You may be able to settle with the City. Do you object to the sewer line going through your property or the fact that that the easement is not being used? Call me directly at 16192223504.

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9/12/06, 7:44 pm

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