Easements & Right of Ways -- Liability

LS_8750 · Post by **LS_8750** » Mon Feb 21, 2011 2:06 pm

This case of an ingress/egress right of way, an existing road, we drafted up a legal description for the right of way so the title company will insure the servient tenant's access.

The road is fairly old, in bad shape, and looks like it might slide down the hill into the creek at any moment. I'm not offering any engineering insight.

The dominent tenant expressed concerns about liability, people getting hurt somehow when using this road, or perhaps it is the potential of damaging his property below when this road slides down the hill. The dominent tenant owns to the creek and the servient tenant's road crosses above to junction with a County road.

I don't have any answers as to liability concerns over right of ways. Can anybody offer some insight or perhaps direct me?

Cheers.

dmi · Post by **dmi** » Mon Feb 21, 2011 2:39 pm

Dominant tenement- the land for whose benefit the appurtenant easement is created.

Servient tenement- the land that is burdened, or used by the easement.

The owner of the dominant tenement would be responsible to maintain the easement, so long as they intended to make use of the easement. In the event that the roadway should fall into disrepair and this neglect is the proximal cause of damage to others, then this owner would be liable, in my opinion absent other evidence. There may be written maintenance agreements or other agreements in place and this fact would change my opinion.

LS_8750 · Post by **LS_8750** » Mon Feb 21, 2011 3:19 pm

Did I get that backwards? Ha! Classic.

Ok, so the holder of the easement (dominent tenement) is on the hook to maintain the right of way and is liable should any damage be caused to the servient tenement's property outside of the limits of the right of way.

That makes sense to me.

It should also make sense that the dominent tenement is liable for his drunk pal tripping and cracking his head within the limits of the right of way and the servient tenement assumes no liability.

Yes?

jcoffey · Post by **jcoffey** » Mon Feb 21, 2011 4:31 pm

Clark -

The answer is maybe, and that's why this matter should be left up to the lawyer(s). The servient tenement may have good cause to ask for indemnification from the dominent tenement. Or the language of the deed conveying the easement may by itself create the legal sufficiency the parties are seeking. Your post said that you are 'drafting up the legal description'. That's good and appropriate, but who's preparing the deed? Should be a lawyer.

Also, you said "The road is fairly old, in bad shape, and looks like it might slide down the hill into the creek at any moment. I'm not offering any engineering insight."

If that's how you really feel, and especially since there's a PE after your name, then I would strongly suggest that you put the parties on notice, in writing, that something should be done to evaluate the stability of the driveway. You can't just pretend that this potential problem doesn't exist just because they hired you only to prepare the legal. And keep in mind that it doesn't matter if both of these parties are your BFFs since gradeschool. You are in a position to protect future owners as well.

That's my 2. Hope that helps,

John S. Coffey, PE, PLS
San Diego, CA

LS_8750 · Post by **LS_8750** » Mon Feb 21, 2011 5:20 pm

Thanks fellas.

Yeah, we are talking about a legal question really, and so "maybe" trumps "surveyor's logic".

I'm preparing the legal description only, at least at this point. The owner's are working out the agreement particulars of the deed. And yeah, it looks like they should get an attorney. That's all I can really advise them.

I believe there are recorded red tags, potentially having to do with this road, after all this is Santa Cruz County. I will look into it and see what the details of the red tags are since they could possibly involve property line issues. And yes, write a letter as suggested!

Thanks fellas.

JoeC · Post by **JoeC** » Mon Feb 21, 2011 9:37 pm

Clark,

I agree with Coffey and I think you might be putting yourself on the line with this one.

Have you offered a new location considering this is a new description and the road is unsafe and has been red tagged? Also, if the road can be reconstructed is it financially feasible and is the easement wide enough?

You can offer so much more to your client with that PE behind you name.
I think you have an obligation to your client to advise them of future conflicts before they enter into any agreements.

Also, is this the only access to the property?

Good luck...

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Easements & Right of Ways -- Liability

Easements & Right of Ways -- Liability

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