Springing Easements agaisnt oneself

[Scott]

Sorry, my search function does not work on this page very well, I am looking for an old thread that talked about private easements dedicated on a map when all the lots are owned by the developer, so it is an easement against oneself. I believe the thought was that they "spring" into being upon conveyance of the individual lots.

My situation now is a Condition of Approval for a parcel map that is a private easement across one parcel for the benefit of another. Should it be done on the map, or seperate instrument? How should the "against oneself" be handled? The surveyor of record has a note on the map now, deferring the easement dedication to the time of conveyance, but my issue, as the jurisdiction, is that the last time the jurisdiction will have input to the project would be the building permit (and maybe an occupancy permit/approval) and how would the jurisdiction authorize conformance at the time of conveyance which could very likely be after the jurisdiction has run out of oppurtunities for input. The developer is more than likely to be the one owner at that time also.

As a Condition of Approval I feel it needs to be done before the Approval of the Parcel Map.

Any help would be greatly appreciated.
Thanks,

[Peter Ehlert]

Steven: I do feel that a private easement Can be created on the face of a map that is signed by the intended grantors (not an RoS).
Clear intent and words of conveyance...
ie. a label of the area shown on the face of a Parcel Map: "20 foot wide sewer easement, hereby granted to the owners if the property depicted" or some such.
In my case it expedited the process and all (owner, buyer, title officer, local agency) were happy... it could/should be clarified for the anal types in a conventional deed calling to the area depicted on the PM.

[E_Page]

I did it like this a few years back. Look at the note regarding Serenade Lane in the middle of the sheet. The document referred to was a deed which included the description, also attached here.

[steffan]

I think Paul Cuomo's input was valuable in the following:

http://www.californiasurveyors.org/clsa ... php?t=1691

[Scott]

That is the post I was looking for and I knew Paul had weighed in. Again Thank you. I don't know why I can't search anymore. I mean I can search, but it never finds what I'm looking for now.

[mpallamary]

I am intuitively predisposed to argue that you cannot create, remove or otherwise alter private easements on a subdivision map. As a general rule, the creation of the sale of subdivisions is governed by the Subdivided Lands Act pursuant to Sections 11000-11008 of the B&P Code. This is not to be confused with the Subdivision Map Act. They go hand in hand.

The Subdivision Map Act governs the creation of parcels which is governed by local agencies. The Subdivided Lands Act has to do with the sale of these lands. What Paul Cuomo was saying is the same thing as if you were the owner of real property; you cannot create easements for your own benefit. This is impermissible.

If you were able to create private easements on a subdivision map act, what would prohibit one from creating bizarre easements that were otherwise impermissible under conventional law?

When the legislature amended the SMA to allow for the extinguishment of easements under the SMA, that was done so to facilitate the governmental proceedings such as public hearings and the adoption of findings. It was thought to be a streamlining procedure. Under the SMA, the review and approval of a subdivision map is a discretionary procedure. Government, by definition, cannot interfere with the rights of private parties through this process. I believe the exercise of governmental discretion is limited to those matters of public interest. This includes the sale of real property under the subdivided lands act. It might be worthwhile to visit this section of the law.

[mpallamary]

CALIFORNIA CIVIL CODE
SECTION 887.010-887.090

887.010. As used in this chapter, "easement" means a burden or
servitude upon land, whether or not attached to other land as an
incident or appurtenance, that allows the holder of the burden or
servitude to do acts upon the land.

887.020. This chapter does not apply to an easement that is part of
a unified or reciprocal system for the mutual benefit of multiple
parties.

887.030. This chapter supplements and does not limit or otherwise
affect the common law governing abandonment of an easement or any
other procedure provided by statute or otherwise for clearing an
abandoned easement from title to real property.

887.040. (a) The owner of real property subject to an easement may
bring an action to establish the abandonment of the easement and to
clear record title of the easement.
(b) The action shall be brought in the superior court of the
county in which the real property subject to the easement is located.
(c) The action shall be brought in the same manner and shall be
subject to the same procedure as an action to quiet title pursuant to
Chapter 4 (commencing with Section 760.010) of Title 10 of Part 2 of
the Code of Civil Procedure, to the extent applicable.

887.050. (a) For purposes of this chapter, an easement is abandoned
if all of the following conditions are satisfied for a period of 20
years immediately preceding commencement of the action to establish
abandonment of the easement:
(1) The easement is not used at any time.
(2) No separate property tax assessment is made of the easement
or, if made, no taxes are paid on the assessment.
(3) No instrument creating, reserving, transferring, or otherwise
evidencing the easement is recorded.
(b) This section applies notwithstanding any provision to the
contrary in the instrument creating, reserving, transferring, or
otherwise evidencing the easement or in another recorded document,
unless the instrument or other document provides an earlier
expiration date.

887.060. (a) The owner of an easement may at any time record a
notice of intent to preserve the easement.
(b) In lieu of the statement of the character of the interest
claimed and the record location of the documents creating or
evidencing the easement claimed, as otherwise required by paragraph
(2) of subdivision (b) of Section 880.330, and in lieu of the legal
description of the real property in which the interest is claimed, as
otherwise required by paragraph (3) of subdivision (b) of Section
880.330, and notwithstanding the provisions of Section 880.340, or
any other provision in this title, a notice of intent to preserve an
easement may refer generally and without specificity to any or all
easements claimed by the claimant in any real property situated in
the county.
(c) An easement is not abandoned for purposes of this chapter if
either of the following occurs:
(1) A notice of intent to preserve the easement is recorded within
20 years immediately preceding commencement of the action to
establish the abandonment of the easement.
(2) A notice of intent to preserve the easement is recorded
pursuant to Section 887.070 after commencement of the action to
establish the abandonment of the easement and before judgment is
entered in the action.

887.070. In an action to establish the abandonment of an easement
pursuant to this chapter, the court shall permit the owner of the
easement to record a late notice of intent to preserve the easement
as a condition of dismissal of the action, upon payment into court
for the benefit of the owner of the real property the litigation
expenses attributable to the easement or portion thereof as to which
the notice is recorded. As used in this section, the term "litigation
expenses" means recoverable costs and expenses reasonably and
necessarily incurred in preparation for the action, including a
reasonable attorney's fee.

887.080. An abandoned easement is unenforceable and is deemed to
have expired. A court order establishing abandonment of an easement
pursuant to this chapter is equivalent for all purposes to a
conveyance of the easement to the owner of the real property.

887.090. Subject to Sections 880.370 (grace period for recording
notice) and 887.020, this chapter applies to all easements, whether
executed or recorded before, on, or after January 1, 1986.

[mpallamary]

SEE 805 BELOW: HERE IT IS IN CONTEXT:

CALIFORNIA CIVIL CODE
SECTION 801-813

801. The following land burdens, or servitudes upon land, may be
attached to other land as incidents or appurtenances, and are then
called easements:
1. The right of pasture;
2. The right of fishing;
3. The right of taking game;
4. The right-of-way;
5. The right of taking water, wood, minerals, and other things;
6. The right of transacting business upon land;
7. The right of conducting lawful sports upon land;
8. The right of receiving air, light, or heat from or over, or
discharging the same upon or over land;
9. The right of receiving water from or discharging the same upon
land;
10. The right of flooding land;
11. The right of having water flow without diminution or
disturbance of any kind;
12. The right of using a wall as a party wall;
13. The right of receiving more than natural support from adjacent
land or things affixed thereto;
14. The right of having the whole of a division fence maintained
by a coterminous owner;
15. The right of having public conveyances stopped, or of stopping
the same on land;
16. The right of a seat in church;
17. The right of burial;
18. The right of receiving sunlight upon or over land as specified
in Section 801.5.

801.5. (a) The right of receiving sunlight as specified in
subdivision 18 of Section 801 shall be referred to as a solar
easement. "Solar easement" means the right of receiving sunlight
across real property of another for any solar energy system.
As used in this section, "solar energy system" means either of the
following:
(1) Any solar collector or other solar energy device whose primary
purpose is to provide for the collection, storage, and distribution
of solar energy for space heating, space cooling, electric
generation, or water heating.
(2) Any structural design feature of a building, whose primary
purpose is to provide for the collection, storage, and distribution
of solar energy for electricity generation, space heating or cooling,
or for water heating.
(b) Any instrument creating a solar easement shall include, at a
minimum, all of the following:
(1) A description of the dimensions of the easement expressed in
measurable terms, such as vertical or horizontal angles measured in
degrees, or the hours of the day on specified dates during which
direct sunlight to a specified surface of a solar collector, device,
or structural design feature may not be obstructed, or a combination
of these descriptions.
(2) The restrictions placed upon vegetation, structures, and other
objects that would impair or obstruct the passage of sunlight
through the easement.
(3) The terms or conditions, if any, under which the easement may
be revised or terminated.

801.7. (a) When a right-of-way is granted pursuant to Section 801
or 802 to a railroad corporation whose primary business is the
transportation of passengers, the grant shall include, but not be
limited to, a right-of-way for the location, construction, and
maintenance of the railroad corporation's necessary works and for
every necessary adjunct thereto.
(b) A "railroad corporation" shall have the same definition as
provided in Section 230 of the Public Utilities Code.

[802.] Section Eight Hundred and Two. The following land burdens,
or servitudes upon land, may be granted and held, though not attached
to land:
One--The right to pasture, and of fishing and taking game.
Two--The right of a seat in church.
Third--The right of burial.
Four--The right of taking rents and tolls.
Five--The right of way.
Six--The right of taking water, wood, minerals, or other things.

803. The land to which an easement is attached is called the
dominant tenement; the land upon which a burden or servitude is laid
is called the servient tenement.

804. A servitude can be created only by one who has a vested estate
in the servient tenement.

805. A servitude thereon cannot be held by the owner of the
servient tenement.

806. The extent of a servitude is determined by the terms of the
grant, or the nature of the enjoyment by which it was acquired.

807. In case of partition of the dominant tenement the burden must
be apportioned according to the division of the dominant tenement,
but not in such a way as to increase the burden upon the servient
tenement.

808. The owner of a future estate in a dominant tenement may use
easements attached thereto for the purpose of viewing waste,
demanding rent, or removing an obstruction to the enjoyment of such
easements, although such tenement is occupied by a tenant.

809. The owner of any estate in a dominant tenement, or the
occupant of such tenement, may maintain an action for the enforcement
of an easement attached thereto.

810. The owner in fee of a servient tenement may maintain an action
for the possession of the land, against any one unlawfully possessed
thereof, though a servitude exists thereon in favor of the public.

811. A servitude is extinguished:
1. By the vesting of the right to the servitude and the right to
the servient tenement in the same person;
2. By the destruction of the servient tenement;
3. By the performance of any act upon either tenement, by the
owner of the servitude, or with his assent, which is incompatible
with its nature or exercise; or,
4. When the servitude was acquired by enjoyment, by disuse thereof
by the owner of the servitude for the period prescribed for
acquiring title by enjoyment.

813. The holder of record title to land may record in the office of
the recorder of any county in which any part of the land is
situated, a description of said land and a notice reading
substantially as follows: "The right of the public or any person to
make any use whatsoever of the above described land or any portion
thereof (other than any use expressly allowed by a written or
recorded map, agreement, deed or dedication) is by permission, and
subject to control, of owner: Section 813, Civil Code."
The recorded notice is conclusive evidence that subsequent use of
the land during the time such notice is in effect by the public or
any user for any purpose (other than any use expressly allowed by a
written or recorded map, agreement, deed or dedication) is permissive
and with consent in any judicial proceeding involving the issue as
to whether all or any portion of such land has been dedicated to
public use or whether any user has a prescriptive right in such land
or any portion thereof. The notice may be revoked by the holder of
record title by recording a notice of revocation in the office of the
recorder wherein the notice is recorded. After recording a notice
pursuant to this section, and prior to any revocation thereof, the
owner shall not prevent any public use appropriate thereto by
physical obstruction, notice or otherwise.
In the event of use by other than the general public, any such
notices, to be effective, shall also be served by registered mail on
the user.
The recording of a notice pursuant to this section shall not be
deemed to affect rights vested at the time of recording.
The permission for public use of real property provided for in
such a recorded notice may be conditioned upon reasonable
restrictions on the time, place, and manner of such public use, and
no use in violation of such restrictions shall be considered public
use for purposes of a finding of implied dedication.

[mpallamary]

CALIFORNIA CIVIL CODE

1104. A transfer of real property passes all easements attached
thereto, and creates in favor thereof an easement to use other real
property of the person whose estate is transferred in the same manner
and to the same extent as such property was obviously and
permanently used by the person whose estate is transferred, for the
benefit thereof, at the time when the transfer was agreed upon or
completed.

[Scott]

Thank you for the citations Michael. I agree private easements need to be done by a separate instrument. Any advice on how to handle the Condition of Approval for the private easement? If the private easement is not granted until the time of conveyance, then how is the jurisdiction to confirm conformance, when the building permit or occupancy permit is the last input the jurisdiction will have for the project? If the private easement is granted before time of conveyance, then the owner of the parcels would still be the same person. Is it possible to "reserve" the easement while the parcels are owned by one person or is the jurisdiction just going to have to wait until the time of conveyance?
I like what Evan did. Show the easement on the Parcel Map with a note that it will be recorded by separate instrument at the time of conveyance.

[Ben Lund]

Scott,
You have found a common problem that is solved by Government Code Section 65870-65875 (Covenant of Easement).

[Scott]

Thanks for the citation Ben, but this is an easement for a sewer lateral and 65871. (a) says "An easement created pursuant to this article may be for parking, ingress, egress, emergency access, light and air access, landscaping, or open-space purposes." and I doubt the jurisdiction has "ordinance adopted implementing this article". I think that section of the law has to do with an easement that would cover the whole property and therefore would not have a separate legal description other the whole of the parcel burdened. It does have the "easement against oneself" aspect to it though.

[Anthony Maffia]

Scott,
Show the PSSE on the face of the map, in the legend as private, and in the owner's statement as
"Those areas shown hereon as P.S.S.E. ("Private Sanitary Sewer Easement") are for the construction, maintenance and reconstruction of underground sanitary sewer lines and appurtenances, are not offered for dedication to the public, are hereby reserved by the owner and shall be granted to the buyer of Parcel B"
or some such thing.

Include a legal description for the PSSE, with references to the parcel map, but with blanks where the recording information would be.

Submit it with the parcel map check print and let the city have at it. The PSSE will be granted to the buyer of Parcel B, which will then create the easement.

[Ben Lund]

Scott,
I believe the covenant of easement can be used for any type of easement but this question might be more suited for an expert attorney in this regard. The covenant of easement is common practice in a particular city in San Diego. I've attached an example covenant of easement for your use. This particular covenant of easement is not one of the allowable "types" per the list but again, I don’t believe the list was meant to be exclusive.

[Scott]

Anthony, I am trying to figure out as the jurisdiction how I am going have the surveyor of record for the project satisfy the Codition of Approval and I have already decided (agreeing with Paul and Michael) that private easements can not be created by a SMA map. Thanks for the input though.

[Scott]

Yea Ben, I read it again and it does say "An easement created pursuant to this article may be" and "may be" does not exclude other types of easements. I'll look into if the City has an "ordinance adopted implementing this article".
Thanks

[Ben Lund]

Steve,
That's the beauty of the covenant, it IS the easement. In other words, no further action needs to occur to insure the easement come into fruition (i.e. easement deeds at time of conveyance).

Scott,
I don’t know if an ordinance adopting the code is necessary. This is another question for the surveying experts that read this forum. I asked two attorneys and both of them said it could be argued either way. The verbiage is, “Any city or county may adopt an ordinance…”

[Anthony Maffia]

Sorry, Scott, I thought you were the surveyor of record. I agree, private easements cannot be created on a parcel map, although I and others in the bay area have shown them for reference only.

[Scott]

Thanks Greg, do you use the "Covenant of Easement" or do you make them record any other separate doc?

[mpallamary]

Greg is quite versed on this issue and his efforts at the City are quite progressive. If possible, I would emulate his process.

Another option is to create a conventional covenant and not an approval covenant. In instances where I have a client who owns adjacent land or is selling some land off, we will describe the land subject to the easement rights as a condition of transfer. The covenant is enforceable and as binding on the property owners. You can create a covenant or CCRs over the entire property, even though under common ownership. This is a good idea if the easement requires construction or maintenance as you can create a maintenance agreement for the mutual benefit of the homeowners. That saves a lot of arguing later.

The notion of assuring access to the second lot is very common and the proposed easement can be created on the map. It becomes operative only when the lot is sold. You can map it and when the property is sold, the description for the servient tenement includes a "subject to" clause carving out the easement.

The dominant tenement takes title and the easement is created as an appurtenance to the conveyed parcel.

Also check out the attached map. This procedure is very common in San Diego County. See the notes about the proposed access and the insurable access notation.

By placing it on the map, the title company is also on notice and hopefully, the note will show up in title.

Good luck

[Scott]

Michael, so there is nothing else recorded for that "PROPOSED PRIVATE ROAD EASEMENT" other than the Parcel Map, and the only things on the Parcel Map about it, are the easement itself drawn, along with the note about insurable access? Where is the "79-442834" road? Are any of those doc#s for the ""PROPOSED PRIVATE ROAD EASEMENT". Where is the Owner's statement on that map? Is there any wording about the private easement in the Owner's?
As far as creating private easements on a SMA map, I guess if as long as a Title company will insure it, then that should be good enough? I see maps in our area all the time that show creating private easements and no document shows in the Title Report, they just reference the map. I have had title reports (different project) also recognize an access easement across a portion of the block my Parcel Map is in, but not a part of my map, for the benefit of a portion inside my boundary. The Title Reports recognize this easement as Parcel Two in the description which comes directly from the decrption of the two grant deeds for the two properties. The whole block is owned by the same entity. So, whether or not these easements even exist legally is kind of mute, unless you have a Title Company that really knows what they are doing and even then I have had that situation in the past and the Title Company still put the easement as an exception with the wording "this easements appears void per (reference to the document that merged the two owner/entities into one company). This last example was turned into a PUE years before the Title Report, but they still excepted it as a private easement then they also excepted the PUE separately.
I really want to figure out the right thing to do, and I am still leaning towards a separate doc. The surveyor of record and I agree that a separate doc will be required, I am just struggling with the "easement against oneself" and the timing of the separte doc in such a way that the jurisdiction can verify conformance to the Condition of Approval.
Thank you to everybody for your input, I value this forum very much.

[mpallamary]

I concur with Greg's response. I will look at your more detailed questions as soon as time permits. I am on two deadlines. One, to get a report out and two, I am leaving for vacation tomorrow. I may not get back to you right away. Greg though has this process pretty much bolted down.

[Scott]

out there who want to chime in on how their jurisdcition handles this situation?
Private Easements are done on a SMA map with a note in the Owner's Statement or must be a separate doc. If your answer is separate doc how is the "against oneself" handled, with a Covenant?
Thanks,

[subman]

We will show for example "a sewer easement for the benefit of parcel 2 across parcel 1 to be reserved in documents" on the map (purpose, bearings, distances and ties to lot lines are shown). Nothing in the owners statement. This is done when the lot design and topography prohibits a gravity connection to the main line public sewer along the parcel's street frontage. The use does not warrant a public sewer branching off to serve the lot (i.e. residential single family).We have not had any problems were the parcel sale deed forgot to include the sewer easement. Will post an example if I can find one.

[GWinglovitz]

Does anyone see that "retaining a private easement" on a Parcel Map being any different than attempting to create a private easement on a PM? A certain County's Map Manual provides the statement to be used when retaining a private easement as...

"We hereby retain the easement indicated as ________, as shown hereon, for private use, for the sole benefit of ourselves, our successors, assignees, and parcel owners within this Parcel Map."

I think they are saying that the PM can create a private easement. This seems to be out of step with everything I read above.