Adams Stirling PLC


It is common for homeowner association CC&Rs to contain easements over the property of members for ingress and egress, installation of utilities (gas, water, electricity, internet, etc.), roads, hiking paths, etc. It gives the association the right to use specified portions of members' properties to benefit the membership.

An easement is a nonpossessory interest in the land of another that gives its owner the right to use the land of another or to prevent the property owner from using his land. (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal. App. 4th 1268, 1278.)

The owner of an easement is not the owner of the property, but merely the possessor of a right to use someone's land for a specified purpose. (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 242.)

An easement can be created by an instrument other than a deed, such as the subdivision map. (Gov. Code, § 66475.)  It has long been the law in California that plat maps may be used to precisely define an easement, and when an easement is defined by a map, it is decisive. (Wilson v. Abrams (1969) 1 Cal.App.3d 1030, 1035.)

It is fundamental that the language of a grant of an easement determines the scope of the easement. (Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1499.)

The owner of the dominant tenement may maintain an action for the enforcement of this intangible right and may recover damages from a party for obstructing the easement. (Civ. Code, § 809; Moylan v. Dykes (1986) 181 Cal. App. 3d 561, 574.)

Appurtenant Easement. An easement appurtenant refers to rights that run with the land that either benefit or burden the use or enjoyment of property by its owner.

An easement appurtenant to the land is attached to the land of the owner of the easement, and benefits him as the owner or possessor of that land. (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 435, p. 615.)

An  appurtenant easement is a burden on land that creates a right-of-way or the right to use the land only. (Civ. Code, § 801.) It represents a limited privilege to use the land of another for the benefit of the easement holder's land, but does not create an interest in the land itself. (Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal. 3d 845, 865.)

Easement in Gross. An easement in gross is a personal easement that does not run with the land. The owner of the easement enjoys a personal right to use the easement but that right does not pass to future owners.

Equitable Easement. "For a trial court to... grant an equitable easement, three factors must be present. First, the defendant must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties' conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff will suffer irreparable injury … regardless of the injury to defendant. Third, the hardship to the defendant from granting the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant. Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement. (Nellie Gail Ranch Owners Ass'n v. McMullin (2016) 4 Cal.App.5th 982, 1003.)

Prescriptive Easement. A prescriptive easement allows a trespasser to acquire the right to use the land of another without paying for it. To acquire a prescriptive easement over another's land, the following elements must be met: (i) use of the land was continuous and uninterrupted for five years; (ii) use of the land was open and notorious (the owner had actual or constructive notice that someone was using his land); and (iii) the use was hostile (without the permission of the owner). (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449-50.) An easement is a right to use, not a right to possess. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296.) In Kapner v. Meadowlark Ranch Association, a property owner claimed a prescriptive easement over a common area roadway parcel owned by the Association and used the encroached area in a possessory fashion by building a fence over it. The Court of Appeal concluded the owner was claiming adverse possession of the property in the guise of a prescriptive easement so as to avoid the requirement to pay taxes. The Court denied plaintiff’s claim of prescriptive easement.

[T]he requirement for paying taxes in order to obtain title by adverse possession is statutory. (Code Civ. Proc., § 325.) The law does not allow parties who have possessed land to ignore the statutory requirement for paying taxes by claiming a prescriptive easement... Because Kapner enclosed and possessed the land in question, his claim to a prescriptive easement is without merit.” (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182.)

Related: See Adverse Possession.

Implied Easement. When the grant of an easement is implied, its terms must be inferred from all of the circumstances of the case. The extent of an easement created by implication is to be inferred from the circumstances which exist at the time of the conveyance and give rise to the implication. The reasonable expectation of the parties at the time of the conveyance is key. Moreover, the easement must be obvious to others to confirm the intent of the original owner to use part of his land for the benefit of the other part and to give notice to his successors in interest that the future servient estate is burdened with the easement in favor of the future dominant estate. (George v. Goshgarian (1983) 139 Cal.App.3d 856, 860-862.)

Negative Easement. An easement may be affirmative, allowing the doing of acts, or negative, preventing the doing of acts. (Wolford v. Thomas (1987) 190 Cal.App.3d 347, 354.) Language often found in CC&Rs related to drainage easements restricts adjoining lot owners from altering or interfering with the natural flow of water. Because it prevents an owner from doing something, a drainage easement is classified as a negative easement. Negative easements are better described as covenants. (6 Cal. Real Est. § 16:1 (4th ed).) As recognized by the Restatement of Property (Third), negative easements are the same as restrictive covenants, i.e., a promise not to do something. (20 Am. Jur. 2d Covenants, Etc. § 148.).

Reciprocal Easements. See  Reciprocal Easements Defined.

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