BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1927|
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CONSENT
Bill No: AB 1927
Author: Jones (R)
Amended: 6/25/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 7/3/12
AYES: Evans, Blakeslee, Corbett, Leno
NO VOTE RECORDED: Harman
ASSEMBLY FLOOR : 74-0, 5/10/12 (Consent) - See last page
for vote
SUBJECT : Easements: maintenance: arbitration
SOURCE : Conference of California Bar Associations
DIGEST : This bill clarifies that an easement owner can
apply, as specified, to either the small claims court or
superior court for enforcement of easement maintenance
responsibilities against other easement owners.
ANALYSIS : Existing law requires the owner of any
easement in the nature of a private right-of-way, or of any
land to which any such easement is attached, to maintain it
in repair. (Civil Code (CIV) Section 845(a))
Existing law provides that, if the easement is owned by
more than one person, or is attached to parcels of land
under different ownership, the cost of maintaining it in
repair shall be shared by each owner of the easement or the
CONTINUED
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owners of the parcels of land, as the case may be, pursuant
to the terms of any agreement entered into by the parties
for that purpose. If any owner who is a party to the
agreement refuses to perform or fails after demand in
writing to pay the owner's proportion of the cost, an
action for specific performance or contribution may be
brought against that owner in a court of competent
jurisdiction by the other owners, either jointly or
severally. (CIV Section 845(b))
Existing law provides that, in the absence of an agreement,
the cost of maintaining an easement shall be shared
proportionately to the use made of the easement by each
owner. (CIV Section 845(c))
Existing law provides that, in the event an owner of an
easement fails to share the cost to maintain an easement,
any owner of the easement, or any owner of land to which
the easement is attached, may apply to any court where the
right-of-way is located and that has jurisdiction over the
amount in controversy for the appointment of an impartial
arbitrator to apportion the cost. (CIV Section 845(c))
Existing law provides that the application for enforcement
of easement maintenance costs may be made before, during,
or after performance of the maintenance work. If the
arbitration award is not accepted by all of the owners, the
court may enter a judgment determining the proportionate
liability of each owner. The judgment may be enforced as a
money judgment by any party against any other party to the
action. (CIV Section 845(c))
Existing law provides that, in the event that snow removal
is not required or under any independent contractual or
statutory duty, an agreement entered into, as specified, to
maintain the easement in repair shall be construed to
include snow removal within the maintenance obligations of
the agreement if all of the following exist:
snow removal is not expressly precluded by the terms of
the agreement;
snow removal is necessary to provide access to the
properties served by the easement; and
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snow removal is approved in advance by the property
owners or their elected representatives in the same
manner as provided by the agreement for repairs to the
easement. (CIV Section 845(d))
Existing law provides that the above provisions do not
apply to rights-of-way held or used by railroad common
carriers subject to the jurisdiction of the Public
Utilities Commission. (CIV Section 845(e))
This bill authorizes an owner of an easement to recover
that owner's agreed proportionate share of the cost of
easement maintenance, or for specific performance or
contribution in an action before, during, or after
performance of the maintenance work, as follows:
(1) The action may be brought in the small claims
court if the amount claimed to be due as the owner's
proportion of the cost does not exceed the
jurisdictional limit of the small claims court. A
small claims judgment shall not affect apportionment
of any future costs that are not requested in the
small claims action.
(2) Except as provided in (1), the action must be
filed in the superior court and shall be subject to
judicial arbitration, as specified. A superior court
judgment shall not affect apportionment of any future
costs that are not requested in the action, unless
otherwise provided in the judgment.
(3) In the absence of an agreement addressing the
maintenance of the easement, any action for specific
performance or contribution must be brought in a
court in the county in which the easement is located.
(4) Nothing in this bill would preclude the use of any
available alternative dispute resolution program to
resolve actions regarding the maintenance of
easements in the small claims court or the superior
court.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/6/12)
Conference of California Bar Associations (source)
ARGUMENTS IN SUPPORT : The bill's sponsor, the Conference
of California Bar Associations, writes, "Filing in Superior
Court requires a larger filing fee, and brings into play
full Superior Court rules on discovery. The paying
landowner must file a Petition asking the Court to appoint
at an arbitrator. The arbitrator is appointed and the
arbitration held. If the defendant doesn't like the
decision of the arbitrator, the defendant can request and
the court must provide a full trial on the issue. As a
result, a $500.00 dispute can easily end up in Superior
Court, go through non-binding arbitration, and then go
through a full court trial. The cost to the paying
landowners is thousands of dollars in attorney fees and
costs, to collect from one or more recalcitrant landowners.
And, since there is no road maintenance agreement, there
is no attorney fees clause, and the Court will not award
attorney fees, only the costs. And, what is to keep the
same or another landowner from doing the same thing the
next time repairs are needed?"
ASSEMBLY FLOOR : 74-0, 5/10/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Davis, Dickinson,
Donnelly, Eng, Feuer, Fong, Fuentes, Beth Gaines,
Galgiani, Garrick, Gatto, Gordon, Gorell, Grove, Hagman,
Halderman, Hall, Harkey, Hayashi, Roger Hernández, Hill,
Huber, Hueso, Huffman, Jones, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Pan, Perea,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. Pérez
NO VOTE RECORDED: Cook, Fletcher, Furutani, Jeffries,
Olsen, V. Manuel Pérez
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RJG:m 7/6/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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