“How I met your Mother” star Josh Radnor is the latest disgruntled celebrity in a real estate battle with his neighbor. Radnor has been served with a lawsuit by his neighbor in his Hidden Hills, California home for allegedly breaking the conditions of a pre-existing easement. The neighbor in question claims the easement is no longer valid because Radnor broke the terms of the agreement by demolishing a retaining wall when he built his deck over the neighbor’s property; the lawsuit insists he now tear down the existing deck.
Josh Radnor built a deck over his neighbor’s property as allowed by an easement, but tore down a pre-existing retaining wall in the process. An easement with the adjoining neighbor’s property was put in place with the previous owner of Radnor’s home, which allowed Radnor to build a deck over his neighbor’s property so long as he kept the existing retaining wall. His neighbor claims that by tearing down the wall, he invalidated the easement, and as such is demanding that Radnor remove the deck.
His neighbor claims that breaking down the retaining wall broke the terms of the easement, therefore deeming the easement invalid!
An easement can allow or limit the use of a land, whether public or private. There are a number of types of easements set in place for a variety of reasons, ranging from those that grant access to a landlocked property to those that simply allow a pathway on private property to get access to a beach. Specifically, there are four types of easements in California:
- Express Easements- When a landowner voluntarily agrees to burden his/her own land. This type of easement is created by a deed or a will, and must therefore be in writing to be enforceable because it is an interest in land. This is the type of easement at issue between Radnor and his neighbor.
- Implied Easement by Existing Use- This type of easement only exists when a single tract of land is divided into two portions, and does not need to be in writing.
- Easement by Necessity- This type of easement will only be created if there is no alternative to crossing another person’s land to get to a main road and does not need to be in writing.
- Prescriptive Easement- This easement is created when a person uses another’s land without the landowner’s consent, and does so for a continuous period of at least 5 years (continuous does not mean constant); no writing is required for this easement. An example is if someone walks down a pathway to the beach that is along private property, for a period of 5 years or more.
Although this case seems rooted in real estate law, it very much parallels a contractual dispute. Specifically, each party clearly owed a duty to the other to maintain the benefit each wanted from the easement agreement. A big problem arising from the demolition of the retaining wall is the danger from the deck collapsing because it lacked sufficient support; this creates a danger both properties.
Additionally, although the neighbor has demanded that Radnor tear down the deck, such a solution would essentially be creating waste. Like many small issues, it would be in both parties best interest to come to some sort of agreement, rather than waste valuable time and money on legal fees. It is unlikely that officials will force the deck to be torn down, though Radnor will likely need to address the safety concerns prompted by the demolition of the retaining wall. Ultimately, it would be in everyone’s best interest to secure the safety of the structure with a retaining wall and come to an amicable resolution.
The lack of a retaining wall poses a safety threat to both Radnor and his neighbor’s property.
Although an easement was previously put in place, it does not necessarily mean that it is permanent. Although we do not have a copy of said easement, the terms that have surfaced so far suggest that Radnor broke the terms previously agreed upon. Radnor’s neighbor should take steps to make sure the easement is properly recorded in the chain of title, as it was created while the home was under different ownership and may also be a factor in terminating the easement. If the easement is deemed valid, the neighbor would be unable to terminate the easement as he/she has the servient estate, meaning that the easement is over their piece of property. Radnor has the Dominant estate in this case, and would be the one with the power to terminate the easement. Based off the information given, the easement is no longer valid due to breaking the terms by demolishing retaining wall, and Radnor has two choices: get rid of the deck, or re-build the retaining wall.
-Ashley Roshanzamir and Kevin Lipton, ESQ
Lipton Legal Group, A PC – Beverly Hills, CA
See our inspiration for this story at TMZ: http://www.tmz.com/2017/05/26/how-i-met-your-mother-josh-radnor-deck-house-neighbor-lawsuit/