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What is a “Secondary Easement”

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Real estate attorneys in California may be familiar with the concept of easements.  But what is a “secondary easement”?

We all understand that a grant of easement gives the holder of that easement the interests expressed in the grant.  But it also includes those interests “necessarily incident thereto”.

A secondary easement is the right to do such things as are necessary for the full enjoyment of the easement itself.  While California law has addressed secondary easements in many cases, those cases do not always address all of the situations that can arise in analyzing the phrase above.  How far can an easement holder “extend” the easement in order to ensure the full enjoyment of the easement?  This is a question that can never be definitively answered and it rests with real estate litigation lawyers to test the boundaries of these definitions.

A secondary easement can be the right to make repairs, renewals and replacements on the property that is servient to the easement and to do such things as are necessary to the exercise of the right.

The Rule of Reason and Secondary Easement

Miller & Starr notes that incidental or secondary easement rights are limited by a rule of reason.  “The rights and duties between the owner of an easement and the owner of the servient tenement…are correlative.  Each is required to respect the rights of the other.  Neither party can conduct activities or place obstructions on the property that unreasonably interfere with the other party’s use of the property.  In this respect, there are no absolute rules of conduct.  The responsibility of each party to the other and the ‘reasonableness’ of use of the property depends on the nature of the easement, its method of creation, and the facts and circumstances surrounding the transaction.”

But a long-standing principle in easement law has been the idea that the owner of an easement cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden.

The problem for the easement holder and the real estate litigator is, as it says above, there are “no absolute rules of conduct.”  Therefore every secondary easement situation depends on a weighing of the specific facts of the specific case.  For the real estate attorney hired to advise his or her client, this can be frustrating in that it is often difficult to give an answer that offers certainty.

Exercising Secondary Easement Rights

As applied to dominant owners, the rule of reason allows them to exercise secondary easement rights “so long as the owner thereof uses reasonable care and does not increase the burden on or go beyond the boundaries of the servient tenement, or make any material changes therein.”  A secondary easement may be exercised “only when necessary and in such reasonable manner as not to increase the burden needlessly on the servient estate or to enlarge it by alteration in the mode of operation.” “The easement owner does not have the right to so change the surface of the land as seriously to damage the usefulness of the servient estate…  It is well settled that the owner of an easement cannot change its character, or materially increase the burden upon the servient estate, or injuriously affect the rights of other persons, but within the limits named he may make repairs, improvements, or changes that do not affects its substance.”

The conflict inherent in the language above should be evident.  This is language that only an experienced real estate attorney could love.  On one hand, the whole concept of a secondary easement is that there are things beyond the actual scope of the easement but necessarily incident to that right.  On the other hand, the language above warns that a secondary easement may not “increase the burden needlessly” or “enlarge” it.  Which is it?  Can the easement holder exercise a secondary easement that is beyond the scope of the easement itself or is he prohibited from increasing the burden?

Likewise, the servient owner who holds the land burdened by a servitude is held to the same reasonableness standard.  The servient owner is entitled to make all uses of the land that are not prohibited by the servitude and that do not interfere unreasonably with the uses authorized by the easement.  The servient owner may use his property in any manner not inconsistent with the easement so long as it does not unreasonably impede the dominant tenant in his rights.  Actions that make it more difficult to use an easement, that interfere with the ability to maintain and repair improvements built for its enjoyment, or that increase the risks attendant on exercise of rights created by the easement are prohibited unless justified by needs of the servient estate.

How does the court determine whether the holder of the servient estate has unreasonably interfered with the exercise of the easement?  California’s courts have noted that the interests of the parties must be balanced to strike a reasonable accommodation that maximizes overall utility to the extent consistent with effectuating the purpose of the easement and subject to any different conclusion based on the intent or expectations of the parties.  Moreover, since these are questions of fact, these are questions for the jury.

Are all of these words a way of saying that there really is no effective objective standard that can be applied to a secondary easement question?  It appears so.  Should the court be looking at whether a secondary easement is necessary to “effectuate the purpose of the easement” or will the court take a hardline position that a secondary easement may not increase the burden whatsoever?  It appears that each and every case is subject to the whims of the trial judge or the jury or both.  Moreover, every judge and every jury is different so results can vary from case to case and jurisdiction to jurisdiction.

secondary easement tree in yard example

What are some examples of secondary easement situations?  Secondary easements often come about because technology has advanced and what was a suitable easement in the past may not be suitable today.  One example is an access easement in which the road is just not big enough for today’s big equipment.  One case involved a ninety degree turn in the access road which effectively prohibited today’s automobiles or trucks from making the sharp turn.  Or consider an easement allowing a pipe to be placed underground through one property to another.  To what extent can a party enter the property to fix and maintain the pipe?  To what extent can the property owner plant trees near or above the pipe?  What other surface ‘obstructions’ can the property owner place on his own property in light of the underground pipe?

The Final Word

The answer to your question on secondary easements is…it depends.  The analysis will rest on a very fact specific inquiry.  The court will weigh the burdens and intents.  But even then the outcome will depend on your judge and jury as well.  Easement law is a very complicated area of real estate litigation and a lot of factors will affect the outcome of your situation.

Laine T. Wagenseller is an experienced real estate attorney who specializes in resolution and litigation of complex real estate disputes.  He is the founder of Wagenseller Law Firm in downtown Los Angeles.

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