Posts: 78
Threads: 22
Joined: Dec 2008
I need help understanding if a subordinate easement interest necessarily allows free access to a road, it seems to me it is incumbent on a person to build their own road on there own dominant easement interest:
Two Puna properties side by side to east and west and only access to them are two appurtenant easements next to each other, each 30' wide and 1000's of feet long running north to south and granting a perpetual nonexlusive access (it doesn't specify, but I assume it means pedestrian access). Owner of property on West has a dominant easement interest in the easement on the west 30x1000' strip, and a subordinate easement interest on the east 30'x1000' strip. Vice versa for property on east (she has dominant easement interest on east strip).
One of the land owners built a road on her dominant easement (at her own great expense). A new owner buys the vacant lot and claims unlimited right to the subordinate easement with the road on it and they do not have to build a road on their dominant easement.
Is that really true, can someone just take your road as if it was there own and not have to pay for development or maintenance costs? I don't know, it seems completely wrong to me but I am not a lawyer and need help understanding.
Thanks for helping, I know you are probably not a lawyer but I'm just trying to understand how the law is supposed to work in this case.
Mahalo
aloha
Posts: 966
Threads: 61
Joined: Jan 2006
i am not an attorney either. My first stop would be the planning dept. and ask why they allowed someone to build a house on your easement....all lots have a setback on their own property, not on an easement. should be interesting, keep us posted.
Posts: 1,955
Threads: 100
Joined: Aug 2005
Planning is not going to get into a deed argument, it's a land court thing
Posts: 966
Threads: 61
Joined: Jan 2006
quote:
Originally posted by lquade
i am not an attorney either. My first stop would be the planning dept. and ask why they allowed someone to build a house on your easement....all lots have a setback on their own property, not on an easement. should be interesting, keep us posted.
oops, sorry just re-read. didn't build a house, just a road which is what an easement is for... still my first stop would be planning. for informational purposes..
Posts: 907
Threads: 12
Joined: Apr 2012
the question is what exactly does dominant and subordinate mean? a gate is a good way to get people to stop driving on your driveway.
Posts: 14,105
Threads: 424
Joined: Aug 2012
A new owner buys the vacant lot and claims unlimited right to the subordinate easement
Irrelevant unless said easement was recorded "with the land" and not "with the owner".
can someone just take your road as if it was there own and not have to pay for development or maintenance
County claims jurisdiction over roads "open to the public" while declining maintenance because they are "privately owned". If any of the stipulations in HCC 24-2 can be construed as applicable... interesting arguments are possible, maybe even a precedent.
Posts: 148
Threads: 2
Joined: Jul 2014
The way I read this, the easement allows joint use, because there is no limitation stated to the contrary. Just because someone has a dominant easement, they are not automatically granted exclusive use. Exclusive use would have to be granted in the easement description as recorded. Your description above states that the contrary is true. The easements specifically provide non-exclusive access. The two adjacent easements are really one very wide easement, any part of which either party is free to use for access to their lot. If the easement as recorded does not specify such, then it is not exclusive to pedestrian traffic. The verbiage of the recorded easement reigns supreme. With easements, like many things, if it didn't happen in writing, it didn't happen. Absent specific expressed restrictions, the most lenient interpretation of the rights granted would generally apply. But, for what it's worth, I am not a lawyer. I am just a guy on the internet. Anyone having legal issues with an easement should consult with a lawyer.
As for the difference between dominant and subordinate (servient) easment descriptions:
As defined by Evershed MR in Re Ellenborough Park [1956] Ch 131, an easement requires the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the benefit or suffering the burden is the servient estate (or servient tenement). For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden. Stolen from Wikipedia
Posts: 1,839
Threads: 48
Joined: May 2007
My guess is that both parties have the right to use both easments, usually for ingress and egress, but neither has the obligation to improve or maintain either.
Posts: 1,522
Threads: 13
Joined: Apr 2014
"but neither has the obligation to improve or maintain either."
But it is the neighborly thing to do. Have you asked them about shared maintenence to keep up or eventually improve the roadway?
Community begins with Aloha
Posts: 78
Threads: 22
Joined: Dec 2008
Mahalo for your thoughts. I would think this would be pretty clear case with precedents but maybe not!
>exactly does dominant and subordinate mean?
Two side by side properties with two easements, but only one (the dominant easement) physically connects to the owners' and the other side not connecting to that owners' property is a subordinate easement interest.
>a gate is a good way to get people to stop driving on your driveway.
They claim right to cut the lock and bash through gate (unobstructed access).
>>can someone just take your road as if it was there own and not have to pay for development or maintenance
>County claims jurisdiction over roads "open to the public" while declining maintenance because they are "privately owned". If any of the stipulations in HCC 24-2 can be construed as applicable... interesting arguments are possible, maybe even a precedent.
It is a private gated road, I still don't see why shouldn't they have to build thier own road on thier own dominant easement.
>My guess is that both parties have the right to use both easments, usually for ingress and egress, but neither has the obligation to improve or maintain either.
What a mess, and not a very favorable outcome for either party.
>...the neighborly thing to do...
This is a mainland land developer with no concern.
aloha
aloha
