Does a neighbor unreasonably interfere with an easement holder’s use of an easement by refusing to consent to the construction of an improvement within the boundaries of the easement?

Facts: An owner held an unrecorded easement over an unpaved shared driveway on undeveloped land owned by their neighbor. The owner improved the shared driveway by paving it and building a retaining wall within the space of the easement, which was necessary to preserve the functional use of the road. As a condition for issuing a building permit after construction began, the building department required the owner to obtain the neighbor’s signature of consent to finish the wall. The neighbor refused to consent, halting construction.

Claim: The owner sought to finish building the retaining wall, claiming the neighbor unreasonably interfered with the owner’s use of the easement by refusing to sign the building department’s permit since the retaining wall was necessary to preserve their use of the driveway.

Counter claim: The neighbor claimed they did not unreasonably interfere with the owner’s use of the easement since the owner did not hold a recorded easement agreement or building permit granting the owner the right to build an improvement on the easement.

Holding: A California court of appeals held the neighbor unreasonably interfered with the owner’s retaining wall since the wall was necessary to preserve the functional use of the driveway. [Dolnikov v. Ekizian (December 23, 2013) _CA4th_]

Editor’s note – The court further based its decision to allow the owner to build and keep the retaining wall on the fact that the wall:

• was built within the scope of the easement;
• did not obstruct the neighbor’s use of their land or the driveway; and
• did not diminish the value of the driveway.

An interference with an easement is generally physical in nature, such as a property owner’s tree exceeding the height limitation covenant within a housing development.

However, an intangible act that does not physically invade the easement, such as the neighbor’s stubborn refusal to sign documents consenting to construction needed to preserve the use of an easement, also constitutes interference. See first tuesday Legal Aspects of Real Estate Chapter 20: Easements: running or personal and Chapter 22: Interference and termination of easements.