Private Right of Eminent Domain May Help with Tight Construction Spaces

​Construction or repair of property in urban environments can be quite challenging.  Many properties lack sufficient space to perform work without using the neighbor’s adjacent property.  This could include routine repairs such as painting and waterproofing work.  The challenge is even greater when major renovations are performed that involve shoring or excavation.   (Note that there is a code provision regarding protecting a neighbor’s property when doing excavation. California Civil Code Section 832.)  In many situations the adjacent owner will act as a “good neighbor” and grant permission to access his or her property.  Unfortunately, some neighbors view a request for cooperation as an opportunity to slow or stop construction work, or to make unreasonable financial demands.  

There is no absolute right to require a neighbor to grant access for construction.  While a potential legislative solution has been discussed at the local level, there is the concern that such legislation could be subject to constitutional challenges or that property owners would not be supportive.  

An existing state law could, in some cases, provide a property owner with a right to use the neighbor’s property, if absolutely necessary.  This private right of eminent domain (Civil Code Section 1002) allows a temporary right of entry for repair or construction work if the following conditions are met:

1. There is a necessity to do the work;

2. There is a great necessity to enter upon the neighbor’s property because either (i) the work cannot be done safely without entry, or (ii) the cost of the work would be substantially higher;

3. The property that is being repaired adversely affects the surrounding community without the repair; 

4. The right to enter will be exercised in the least intrusive manner feasible; and

5. The hardship to the constructing party clearly outweighs the hardship to the impacted owner.

A court order finding that these standards have been met is required prior to entry, and the court may require a deposit to cover potential damage, and the payment of reasonable rent.  

These standards are difficult to satisfy in most cases.  The requirement that “the property being repaired would adversely affect the surrounding community if not repaired” is especially challenging.  It is unclear if a court would consider the lack of fresh paint or leaking windows to adversely affect the surrounding community.  Perhaps it could be argued that a deteriorating building would cause blight and lead to an unhealthy urban environment.  The other requirement that is troublesome is that the “work cannot be done safely without entry.”  In most cases, the issue is not safety but the impossibility of doing the work without entry, at least over the airspace of the adjacent property.  If a court interpreted this requirement to also mean the work cannot be performed at all, without considering the safety issue to be a requirement, then this standard could more easily be satisfied.  

Given the high threshold established by Civil Code Section 1002, and the length of time to get to trial, it is not surprising that there are no reported appellate cases interpreting this statute.  While the effectiveness of this right may be uncertain, it could be a tool to be used during negotiations with a neighbor. The threat of a lawsuit may be enough to convince a recalcitrant owner to grant construction access without unreasonable demands.

The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient.  Readers should consult with legal counsel before relying on any of the information contained herein.  Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.