If an easement owner is required to obtain governmental approval in order to develop that owner’s property, and the neighboring property owner refuses to consent to the development (e.g. refusing to execute consent for a retaining wall permit), such refusal to consent may constitute an interference with easement rights and allow the recovery of tort damages. (Dolnikov v. Ekizian, 2013 WL 6680755 (Second Dist., December 19, 2013) (“Dolnikov”)
Dolnikov is the first published California decision in several decades to address the extent of an easement owner’s “secondary easement” rights. In addition, Dolnikov represents an important developed in easement law by applying centuries-old “reasonable use” standards to an “intangible act,” in this case the servient tenement owner’s refusal to execute documents required by the City in order to develop the easement owner’s land. In this case, the refusal to cooperate with the easement owner’s development plans resulted in the recovery of tort damages.
The Trial Court Awards Damages For Interference With Easement Rights
In Dolnikov, the easement was originally granted in 1942. After the plaintiff easement holder purchased her property in 1998, she obtained permits to construct two houses on her land. Sometime after construction commenced, the defendants purchased the servient tenement with knowledge of the easement.
Given the slope, curvature and soil conditions of the land covered by the easement, plaintiff had submitted a plan that required a cut, grading and construction of a retaining wall across the face of the cut. The City approved the grading plan, but plaintiff forgot to obtain a permit to construct the retaining wall. When she applied for that permit, she learned that the defendants had lodged complaints with the City questioning her right to build on the property. Plaintiff needed the defendants’ consent to execute a new community driveway covenant and the retaining wall permit, but the defendants refused to consent and raised objections to the project.
In 2004, absent defendants’ consent, the building permits were revoked and plaintiff’s partially-constructed home could not be completed. The plaintiff filed a lawsuit seeking both declaratory and injunctive relief, as well as damages for interference with her easement. In the first phase of trial (declaratory relief), the trial court concluded that the cut, the grading and the retaining wall were necessary for the use of the easement. Even after that initial ruling, the defendants refused to grant permission for the retaining wall permit, further thwarting plaintiff’s ability to complete construction.
In the second phase of the trial before a jury, plaintiff argued that defendants’ conduct constituted an interference with her easement rights. Ultimately, the jury found that defendants had substantially and unreasonably interfered with plaintiff’s use and enjoyment of her easement, and it awarded $713,927.96 in damages and interest.
Court Affirms Tort Damages For Failure To Execute Consent Documents
The Dolnikov court affirmed the trial court judgment. While the parties had framed the case based upon the implied covenant of good faith and fair dealing arising from a covenant running with the land, the Dolnikov court focused on a different issue – i.e., whether an “intangible act” (such as a refusal to sign documents), that did not physically invade the easement, could constitute an interference with an easement.
The Dolnikov court focused on two areas of easement law. First, the court cited to the cases addressing an easement holder’s right to a “secondary easement” over the burdened property. Historically, such secondary easements concerned the right of the easement owner to make, “repairs, renewals and replacements,” on the burdened property. Here, the court interpreted the easement owner’s secondary easement rights to include not only the physical improvement on the burdened property (i.e., the grading, the cut and the retaining wall), but also the servient tenement owner’s consent to obtain permits for those improvements.
Second, the court focused on the “correlative” rights of the respective owners of the dominant and the servient tenements, and principally the obligation not to unreasonably interfere with the other’s use of the easement. (citing to 6 Miller & Starr, California Real Estate (3rd ed. 2006) §§ 15:63, p. 15-215.)
Ultimately, the Dolnikov court concluded that the defendant’s refusal to sign two documents (the covenant for community driveway and the permission for the retaining wall permit) constituted an unreasonable interference with plaintiff’s use and enjoyment of the easement:
“By declining simply to provide a signature on two documents required by [the City], defendants interfered with plaintiff’s ability to maintain and repair the easement, and rendered plaintiff’s use of the easement, not simply more difficult, but impossible. In this manner, defendants’ action of refusing to cooperate or reasonably accommodate constituted a complete and total obstruction of plaintiff’s easement.”
The Dolnikov decision – along with the recently decided Rye v. Tahoe Truckee Sierra Disposal Company, Inc., 2013 WL 6578784 (Third Dist., December 16, 2013) – provide ample warning to anyone intending to develop land that if the property is either burdened or benefitted by an easement, then they should carefully consider the rights, duties and obligations arising from that easement. As the Dolnikov court acknowledged, because, “reasonableness depends on the facts and circumstances of each case,” there is no “one size fits all” resolution in any given scenario.