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 area 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 preventing 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 Easement. 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 area in a planned development. 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 common area needed to convert a non-CID development into to a common interest 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.) A drainage easement restricts adjoining lot owners from altering or interfering with the natural flow of water. Accordingly, the 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. (20 Am. Jur. 2d Covenants, Etc. § 148.). As such, they don't qualify as reciprocal easements that can be classified as common area for purposes of creating a planned development.
Nonreciprocal Easement. Easements in CC&Rs that are not reciprocal do not qualify as common area. 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.)
Maintenance Requirement. Another element to evaluate in determining whether an 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 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.
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