Easement Defined. An easement is a right to use or enter onto the property of another in a specified manner without possessing it. The easement benefits the owner of the easement (the dominant tenement) and burdens the land of the landowner (the servient tenement). Reciprocal easements are found in deeds and sometimes in an association's CC&Rs.
Reciprocal Easements as Common Area
Planned Developments. Common areas may consist of mutual or reciprocal easement rights appurtenant to the separate interests. In a planned development, common areas may consist entirely of reciprocal easement rights appurtenant to the separate interests. (Civ. Code § 4095(b)), Lauckhart v. El Macero Homeowners Ass'n (2023) 92 Cal.App.5th 889) The easements are deemed common area even though they are located on privately owned property.
If a subdivision includes only public streets and no common areas, it is a standard subdivision. If the streets are private and maintained by a homeowners' association, with the power to assess owners for maintenance and repair costs, then the subdivision is a planned development.
Utility Company Easements. For a reciprocal easement to exist, there must be a shared burden. Easements for the installation of utilities do not qualify because they run in only one direction—the burden is only on the homeowner. There is no shared burden. The utility companies have not granted an easement to the homeowners, so they are burdened. Accordingly, they do not create a common area. (Id. 1216) An easement granted by a homeowner to a utility company does not qualify as a reciprocal easement because it is not mutual. There is no shared burden because the easement runs in one direction only — the burden is on the homeowner only. With respect to associations, utility companies do not grant easements to homeowners or the association. Thus, the utility companies are not burdened.
Roads and Trails. An example of a reciprocal easement is a condominium building with a common driveway. Each condominium owner may grant a reciprocal easement to the other condominium owners, allowing each owner to drive anywhere on the driveway and preventing any owner from erecting a barrier. (Cheveldave v. Tri Palms Unified Owners Ass'n (2018) 27 Cal.App.5th 1202, 1214) In a gated community, reciprocal easements may consist of private roads and equestrian trails.
Although there are no cases that have decided this question, we agree with the view expressed by one commentator: "The often subtle but important distinction between a common interest development and a standard subdivision involves the manner in which common roads, recreational lots and other facilities are held by the owners of interests in a subdivision. If a subdivision includes only public streets and no common areas it is a standard subdivision." (9 Miller & Starr, Cal. Real Estate (3d ed. 2007) § 25C:8, p. 25C-30; Tract 19051 Homeowners Ass'n v. Kemp (2013) Cal.App. Unpub.)
How Are Reciprocal Easements Created? Reciprocal easements can be established through recorded covenants where a common grantor created and reserved reciprocal easements for a shared driveway through a recorded deed. (Fobbs v. Smith (1962) 202 Cal.App.2d 209, 211) The easements are often recorded in the development's declaration, which serves as a binding agreement among all property owners within the development. (Lauckhart v. El Macero Homeowners Ass'n (2023) 92 Cal.App.5th 889, Cheveldave v. Tri Palms Unified Owners Ass'n (2018) 27 Cal.App.5th 1202) Reciprocal easements arise from a general plan of real estate development where the intent to restrict the land pursuant to a general plan is evident in the deed, and the restrictions are for the mutual benefit of all parcels involved. (Cheveldave v. Tri Palms Unified Owners Assn (2018) 27 Cal.App.5th 1202, 1215) In other words, they are created by the developer in an association's CC&Rs and recorded maps. The general plan will describe the purpose of the easements, i.e., roads, trails, etc. The general plan shows that the parcel is subject to restrictions for the benefit of all other parcels in the subdivision, and that these other parcels are similarly restricted for mutual benefit. This mutuality of obligation is a key factor in establishing reciprocal easements.
A reciprocal easement is created when the “intent… [to] benefit all the other parcels in the subdivision and such other parcels are subject to like restriction for its benefit.” (Terry v. James (1977) 72 Cal.App.3d 438, 442.) The easement does not have to be developed. All that is needed is for the easement be established with the intent that it be used at some future date as a road, trail, etc. The shared benefits and burdens make them reciprocal easements, whether developed or undeveloped.
Mutual Easements. A mutual easement has the same meaning as a reciprocal easement: “[A] general plan of real estate development can give rise to mutual equitable servitudes only when both the grantor and grantee intend that the land conveyed is to be restricted pursuant to a general plan, that intent appears in the deed, the parties’ agreement shows that the parcel conveyed is subject to restrictions in accordance with the plan for the benefit of all the other parcels in the subdivision and such other parcels are subject to like restriction for its benefit.” (Terry v. James (1977) 72 Cal.App.3d 438, 442) Thus, mutual easements are defined by a “mutuality of obligation.” (Welsch v. Goswick (1982) 130 Cal.App.3d 398, 405) [Cheveldave v. Tri Palms Unified Owners Ass'n (2018) 27 Cal.App.5th 1202, 1215] This mutuality of obligation ensures that the benefits and burdens of the easements are shared equitably among the property owners.
Reciprocal Easement Agreements. Reciprocal Easement Agreements (REAs) are use restrictions used most often in integrated shopping centers. They are similar to CC&Rs for residential developments in that they are recorded agreements for managing a shopping center. REAs regulate building height, signage, parking, the number of anchor tenants, architectural issues, use restrictions, etc. REAs can restrict the types of tenants and uses. For example, it might prohibit non-retail uses such as medical/dental offices, theaters, gyms, and churches. REAs are also known by other names, such as:
- Construction, Operation, and Reciprocal Easement Agreement (COREA)
- Declaration of Restrictions and Easements (Declaration)
- Easements, Covenants, Conditions, and Restrictions (ECCR)
- Easements with Covenants and Restrictions Affecting Land (ECR)
- Operation and Easement Agreement (OEA)
- Reciprocal Construction, Operation, and Easement Agreement (RCOEA)
Negative Easements
Not all reciprocal easements qualify as common areas in a planned development. 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).
Nonreciprocal Easements. Easements in CC&Rs that are not reciprocal do not qualify as common areas. For example, “Every Member of the Association shall have a non-exclusive easement for use and enjoyment of the Recreational Facilities and any improvements thereon or open space areas therein, which shall be appurtenant to and pass with title to each Lot, subject to all of the easements, covenants, conditions, restrictions and other provisions contained in the Declarations and this Master Declaration.” This does not create a reciprocal easement because there is no shared burden. The members’ properties are not burdened by an easement—only the recreation facility is burdened by an easement. (Cheveldave v. Tri Palms Unified Owners Ass'n (2018) 27 Cal.App.5th 1202, 1215)
Easement Maintenance Requirements
Another element to evaluate in determining whether a reciprocal easement qualifies as common area is whether it is owned by the association or in common by owners, and whether it is sufficiently defined to be maintained. Civil Code § 4175 states:
“Planned development” means a real property development…having either or both of the following features: (a) Common area that is owned either by an association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area. (b) Common area and an association that maintains the common area with the power to levy assessments that may become a lien upon the separate interests in accordance with Article 2 (commencing with Section 5650) of Chapter 8.
Drainage easements between lots are held by adjacent lot owners and are not owned by the association or held in common by members of the association. Because they are held by adjacent owners, they are maintained by those owners, not the association. As such, they do not meet the definition of common area and cannot be used to convert a non-CID development into a Davis-Stirling common interest development.
Other Easements
It is common for homeowner association CC&Rs to contain easements over members' property for ingress and egress, the 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 a 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 to enforce this intangible right and recover damages from a party who obstructs the easement. (Civ. Code, § 809; Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574)
Appurtenant Easements. An easement appurtenant is a right that runs with the land and either benefits or burdens 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)
Easements in Gross. An easement in gross is a personal easement that does not run with the land. The owner of the easement has a personal right to use it, but that right does not pass to future owners.
Equitable Easements. "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 the defendant. Third, the hardship to the defendant from granting the injunction must be greatly disproportionate to the hardship caused to the 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 Easements. A prescriptive easement allows a trespasser to acquire the right to use another's land 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 to avoid the requirement to pay taxes. The Court denied the plaintiff’s claim of prescriptive easement. The requirement to pay taxes 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 Ass'n (2004) 116 Cal.App.4th 1182) Related: see Adverse Possession.
Implied Easements. 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 that 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 party 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)
Construction in Easements
An owner built a deck and a hot tub in the association's easement. He did so with the permission of the architectural committee but in violation of a CC&R restriction that prohibited structures in the easements. The board of directors discovered the violation and ordered the owner to remove the deck. The owner refused, even when the association offered to pay for the removal. The association sued the owner. The court ordered the removal of the new deck and hot tub. The court concluded that the owner violated the express prohibition in the CC&Rs and that the architectural committee lacked authority to approve such a violation. (Woodridge Escondido v. Nielsen)
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.