BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1927 (Jones)
As Amended June 25, 2012
Hearing Date: July 3, 2012
Fiscal: No
Urgency: No
TW
SUBJECT
Easements: Maintenance: Arbitration
DESCRIPTION
Existing law authorizes an owner of an easement (piece of land
that is used by more than one person for a specified reason)
that is owned by more than one party to apply to a court for the
appointment of an arbitrator to determine proportional costs of
each owner regarding the maintenance of the easement. This bill
would clarify that an easement owner can apply, as specified, to
either the small claims court or superior court for enforcement
of easement maintenance responsibilities against the other
easement owners.
BACKGROUND
Individuals may share certain pieces of real property for
specified uses, such as using a common driveway to access
housing developed on abutting parcels of land. The shared use
of the same property creates what is known as an easement or
right-of-way. Ordinarily, the owner of a piece of property, on
which an easement is created for the use by others of the
property, is responsible for the maintenance of the easement.
However, users of the easement may agree to maintain the
easement. (Rose v. Peters (1943) 59 Cal.App.2d 833, 835.)
In 1939, the Legislature established the right of owners of an
easement to file an action to require other owners to share the
cost of maintaining and repairing the easement. This statute
was first amended by AB 1350 (Cortese, Ch. 985, Stats. 1985),
which provided that if an owner of an easement fails to share
(more)
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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. Code
Sec. 845(c).) At that time, those actions could be brought in
municipal or superior courts. Subsequently, California courts
were restructured and municipal courts were abolished.
Under existing practice, small claims courts do not provide
mandatory arbitration of disputes. As such, easement owners are
experiencing difficulty in filing actions in small claims courts
for enforcement of repair costs against other easement owners.
This bill would clarify the ability of easement owners to file
an enforcement action in either small claims court or superior
court, as specified.
CHANGES TO EXISTING LAW
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. (Civ. Code Sec.
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 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. Code Sec. 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. Code Sec.
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
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located and that has jurisdiction over the amount in controversy
for the appointment of an impartial arbitrator to apportion the
cost. (Civ. Code Sec. 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. Code Sec. 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
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. Code Sec.
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.
Code Sec. 845(e).)
This bill would authorize 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
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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.
COMMENT
1. Stated need for the bill
The author writes:
AB 1927 would amend Civil Code �Section ] 845 to specifically
permit disputes �by] calling for the apportionment of easement
maintenance costs to be resolved in small claims court if the
amount in controversy is small enough, rather than forcing
these actions to go through a more elaborate - and costly -
Superior Court process which includes mandatory, non-binding
judicial arbitration.
Although this language is clearly permissive, some Courts have
interpreted this code section to mean that, even when the
amount in controversy is clearly well within the Small Claims
Court jurisdictional threshold, the only way someone can get
reimbursement for repair to a common easement is to file the
case in Superior Court and engage in the non-binding
arbitration process.
The sponsor of this bill, 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
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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?
2. Clarifying ability to bring easement maintenance enforcement
actions in either small claims or superior courts
Although existing law provides that an easement maintenance
action may be filed in any court where a right-of-way is located
and that has jurisdiction over the amount in controversy,
easement owners recently have reported difficulty in filing
these actions in small claims courts for adjudication of small
amounts because the statute is being construed to also require
an action to be filed for the appointment of an impartial
arbitrator to apportion the cost. In practice, since small
claims courts do not order mandatory arbitration, easement
owners are being told to file their actions in superior courts.
The statute at issue, Civil Code Section 845, was enacted in
1939, and subsequently amended by AB 1350 (Cortese, Ch. 985,
Stats. 1985), which provided that if 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. Code Sec. 845(c).)
This statute was further amended in 1993 by SB 370 (Leslie, Ch.
196, Stats. 1993) to provide for arbitration of snow removal
costs of easement maintenance. This Committee's analysis of SB
370 noted that small claims courts were being used to force
payment for the shared costs of doing road maintenance (such as
pothole repair and repaving). However, beginning in 1998,
California began to restructure its trial court system and
unified municipal courts into county superior courts. Small
claims courts were subsequently established to adjudicate claims
valued at certain amounts. However, only superior courts
provide for mandatory arbitration of disputes.
The sponsor of this bill, the Conference of California Bar
Associations, argues that this bill is necessary to authorize
parties to file an easement maintenance action in small claims
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court, so that easement owners can quickly and inexpensively
resolve easement maintenance cost claims. The author argues that
"�i]n these small amount cases, the Small Claims procedure is
faster, costs far less, and gives the defendants the opportunity
to have their 'day in court' before the Commissioner with a
decision that is binding unless a losing defendant elects to
appeal to the Superior Court. On the other hand, if the amount
in controversy is close to the jurisdictional limits of the
Small Claims Court, the Petitioner may elect to file in Superior
Court. This flexible system, which AB 1927 will make possible,
works to the benefit of all concerned."
Accordingly, this bill would clarify that easement owners can
file an action in either small claims or superior court, as
specified. Recent amendments clarify the right to small claims
adjudication, provide for superior court arbitration, and
clarify the ability of litigants in small claims courts to
mediate or otherwise find alternative ways to resolve their
dispute.
Specifically, this bill would authorize 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.
(2)If an action is not otherwise brought in a small claims
court, the action must be filed in the superior court and
shall be subject to judicial arbitration, as specified.
(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.
This bill would further provide that nothing precludes 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. Additionally, this
bill would provide that neither a small claims nor superior
court judgment shall affect apportionment of any future costs
that are not requested in the action. This provision is
necessary to clarify that, although easement owners are
apportioning costs for easement repair (i.e., paving a road) at
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that time, if the easement is then repaired at a later date
(potentially many years in the future), and the potential use of
the easement by each owner has changed, the proportion of the
maintenance costs could be altered based on the use by each
owner at that time.
Support : None Known
Opposition : None Known
HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation :
SB 370 (Leslie, Ch. 196, Stats. 1993) See Comment 2.
AB 1350 (Cortese, Ch. 985, Stats. 1985) See Background and
Comment 2.
Prior Vote :
Assembly Floor (Ayes 74, Noes 0)
Assembly Committee on Local Government (Ayes 9, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
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