Homeowners: Know Your Rights

I. The Homeowner’s Right to Exclude.

Under California law, the right to exclude others is a fundamental attribute of private property ownership. As the courts have stated, “[a]s a general rule, landowners … have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership.” (Church of Christ in Hollywood v. Superior Ct., 99 Cal. App. 4th 1244, 121 Cal. Rptr. 2d 810 (2002)) An unauthorized entry onto the land of another is a trespass; because lack of consent is an element of the tort, a peaceable entry made with the owner’s consent is not actionable, but an entry without consent is. (Church of Christ in Hollywood v. Superior Ct., 99 Cal. App. 4th 1244, 121 Cal. Rptr. 2d 810 (2002)) Accordingly, absent the owner’s consent or some independent legal authorization, SDG&E’s entry onto private residential property to conduct a survey would constitute a trespass, and the homeowner is within his or her rights to refuse permission.

II. SDG&E’s Limited Statutory Means for Non-Consensual Entry.

California law does provide a narrow, regulated procedure by which SDG&E can obtain a court order to enter property in order to conduct surveys, as set forth in Code of Civil Procedure section 1245.010.

This authority is not a right SDG&E has, and before entering, SDG&E must either (i) obtain “[t]he written consent of the owner” or (ii) obtain “[a]n order for entry from the superior court.” (Cal. Civ. Proc. Code § 1245.020) Where the owner does not consent, SDG&E would have to petition the superior court for permission, then give the owner prior notice the court determines it is appropriate, and SDG&W [sic] would be required to obtain an order.

The California Supreme Court has confirmed that this procedure is the constitutionally adequate mechanism for non-consensual entry, and that a property owner is entitled to notice and an opportunity to be heard before any such order is issued. (Prop. Rsrv., Inc. v. Superior Ct., 1 Cal. 5th 151, 375 P.3d 887 (2016); Prop. Rsrv., Inc. v. Superior Ct., 1 Cal. 5th 151, 375 P.3d 887 (2016))

What this means for homeowners is pretty straightforward. First, a homeowner can say no if SDG&E asks to enter or survey the property. SDG&E does not have the right to simply come onto property over the owner’s objection without consent or proper legal authority. Second, the homeowner’s right to keep others off the property is not unlimited if SDG&E goes through the proper court process. The California Supreme Court has recognized that certain entries onto private property by public officials or employees, when authorized by statute, are a long-recognized limit on the right to exclude others. (Prop. Rsrv., Inc. v. Superior Ct., 1 Cal. 5th 151, 375 P.3d 887 (2016))

In short, a homeowner may refuse permission and require SDG&E to seek a court order. But if SDG&E obtains a valid court order — with proper notice, a court-defined scope, any required deposit, and compensation for damage or interference — the homeowner generally cannot block that court-authorized entry.

III. The Easement Exception — Each Grant Must Be Analyzed.

The principal exception is where a homeowner, or a predecessor, has granted SDG&E a recorded easement. But an easement does not give unlimited access; its scope is limited by the terms of the grant. (Cal. Civ. Code § 806).

This has two important effects. First, if an easement was granted for one specific purpose, SDG&E cannot use it for a different purpose. The use must stay within what the easement actually allows. (Scruby v. Vintage Grapevine, Inc., 37 Cal. App. 4th 697, 43 Cal. Rptr. 2d 810 (1995); Schmidt v. Bank of Am., N.A., 223 Cal. App. 4th 1489, 168 Cal. Rptr. 3d 240 (2014)) Even when an easement is worded broadly, it only allows a use that is reasonably needed and consistent with the purpose of the easement. (Atchison, T. & S. F. Ry. Co. v. Abar, 275 Cal. App. 2d 456, 79 Cal. Rptr. 807 (Ct. App. 1969))

Second, SDG&E cannot use an easement for anything beyond what the easement allows. If it does, that extra use may be treated as a trespass. (Fletcher v. Stapleton, 123 Cal. App. 133, 10 P.2d 1019 (Cal. Ct. App. 1932); Keeler v. Haky, 160 Cal. App. 2d 471, 325 P.2d 648 (1958)) SDG&E also cannot change the easement’s basic purpose or place a much greater burden on the property. (Dolnikov v. Ekizian, 222 Cal. App. 4th 419, 165 Cal. Rptr. 3d 658 (2013)) In utility easement cases, courts look at the actual wording of the recorded easement to decide what activities are allowed. (Sarale v. Pac. Gas & Elec. Co., 189 Cal. App. 4th 225, 117 Cal. Rptr. 3d 24 (2010))

Accordingly, the existence of an SDG&E easement does not, by itself, establish a right to survey. Whether SDG&E may enter to conduct a survey under an existing easement depends entirely on the language of that particular instrument — its stated purpose, the described scope, and any limitations it contains. Each easement must be reviewed individually.

IV. Suggestions and Recommendations for Homeowners.

Based on the foregoing, we offer the following practical guidance for homeowners who are approached by SDG&E:

1. 1

   A homeowner may decline a request to enter or survey the property and is under no obligation to consent. A refusal is not unlawful and does not, by itself, expose the homeowner to liability.

2. 2

   When approached, the homeowner should ask SDG&E to identify, in writing, the specific legal basis on which it claims a right to enter — consent, a recorded easement, or a court order — and to specify the exact purpose and scope of the proposed survey.

3. 3

   The homeowner should ask whether SDG&E contends it holds an easement over the property and, if so, request a copy of the recorded instrument. Any such easement should be reviewed — ideally with counsel — to confirm whether the proposed survey falls within its stated purpose and scope before any entry is permitted.

4. 4

   A homeowner should not sign any consent, access agreement, or “right of entry” form presented by SDG&E without first reviewing it carefully, as such a document may waive rights or grant access broader than the homeowner intends.

5. 5

   If SDG&E elects to pursue a court order under Code of Civil Procedure section 1245.030, the homeowner is entitled to advance notice and an opportunity to be heard, and may ask the court to limit the purpose and scope of any entry and to fix appropriate compensation for damage or interference. A homeowner served with such a petition should consider obtaining counsel promptly.

6. 6

   The homeowner should document any entry or attempted entry — including dates, personnel, and activities undertaken — in the event a dispute later arises over whether the entry exceeded the scope of consent, an easement, or a court order.