QUESTION PRESENTED Can Jordan Flayen terminate the easement owned by Cassandra Shoop for incompatible acts under California Civil Code § 811(3) and abandonment under common law where Shoop has allowed children to play on it, let it deteriorate, and no longer uses it for its original purpose?
SHORT ANSWER
Yes, because letting the easement degrade extensively and permitting children to play on it are acts incompatible with the easement’s use, and Shoop has indicated that she is a non-user who intends to abandon the easement by failing to restore it to a functional state.
FACTS
Jordan Flayen owns property at 137 Seaton Drive in Sausalito, California, where he currently resides. Cassandra Shoop is Flayen’s neighbor who lives on the property…show more content… This misuse is not as extensive as that in Crimmins, and does not on its face amount to a permanent change in the use of the easement. Yet, Shoop has also declined to repair the severe potholes and ridges caused by storm damage three years ago, effectively nullifying its proper use for the past three years. Like in Crimmins, this is a permanent change because the easement cannot be restored to its original purpose as a driveway without imposing an excessive burden on Flayen. Restoring the driveway would result in undue burden to Flayen because Shoop acquired a suitable alternative for parking her car, and it would be inequitable for Flayen to have to accommodate repairs to a utility whose use Shoop no longer…show more content… Like the defendant’s conduct in Reichardt, this incompatible act by Shoop is minimal and does not result in a physical change permanently preventing use of the easement. Were this the only incompatible act in question, the rationale in Reichardt provides that an injunction enjoining Shoop’s boys from playing on the easement is the proper remedy. However, the easement is physically damaged due to storm conditions dating three years back, and Shoop has not elected repair these defects. Flayen’s case is distinguishable on these facts because they evidence a permanent and material interference that is incompatible with use of the easement as a driveway. In contrast to the Reichardt court’s reasoning, this change in the physical condition sufficiently justifies extinguishment of the easement because it permanently prevents its original use without imposing the burden of accommodating repairs unduly on Flayen. Due to Shoop’s misuse and the permanent changes resulting therefrom, the easement may be terminated in violation California Civil Code Section
