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 can sometimes be found in an association's CC&Rs.
Reciprocal Easements as Common Area
Common areas may consist of mutual or reciprocal easement rights appurtenant to the separate interests. (Civ. Code § 4095(b).) A reciprocal easement arises when adjoining landowners impose corresponding restrictions or rights on each of their properties. 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 that allows each owner to drive anywhere on the driveway and prevent any owner from erecting a barrier. (Cheveldave v. Tri Palms Unified Owners Association (2018) 27 Cal.App.5th 1202; 1214.)
For a reciprocal easement to exist, there must be a shared burden. Easements granted to utility companies do not qualify since they are not mutual. There is no shared burden since the easement runs in one direction only--the burden is only on the homeowner. With associations, utility companies do not grant easements to the homeowners or the association. Thus, the utility companies are not burdened. (Id. 2016.)
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. LEXIS 3434, *19-20, 2013 WL 1993677.)
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 Association (2018) 27 Cal.App.5th 1202, 1215.]
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.). Following is reciprocal easement language found in some CC&Rs: "Each Owner shall have a reciprocal easement over adjacent Lots for the purpose of accommodating established drainage patterns over such adjoining Lots." This kind of easement fails to meet the definition of a common area needed to convert a non-CID development into to a common interest development.
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 not a 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 Association (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 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.
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 the height of buildings, 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)
Other Easements
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 Easements. 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.)
Easements 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 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 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 Easements. 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 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 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.)
Construction in Easements
An owner built a deck and 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 the architectural committee did not have the authority to approve a violation of the CC&Rs. (Woodridge Escondido v. Nielsen.)
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.