CC&Rs and Easements

[LS_8750]

Can recorded CC&Rs function to create easements not shown or described in any other document?

[DWoolley]

Can recorded CC&Rs function to create easements not shown or described in any other document?

Yes, in my experience.

Hot tip to surveyors offering opinions on easements, know the difference between a servient and dominant tenement/estate. The CC&R easements are often written by attorneys and they properly reference to the dominant/servient parties. The use of the words is almost counterintuitive to the plain language meaning. I was recently hired for a lawsuit that involved easements shown in the CC&Rs that concerned access to the side yard for maintenance of a zero lot line setback. The descriptions were similar to "...lots 1, 3, 5.. are servient to lots 2, 4, 6...for 3' side yard access for maintenance..." no further legal descriptions. Surveyor mixed up the servient and dominant and perpetuated the litigation - to their own detriment, the attorneys never suspect land surveyors do not know what they are talking about.

Bonus: a surveyor called me last month to get advice on a case for which he was retained, I stopped him mid-sentence and said "let me guess, the surveyor messed of the servient/dominant...". He immediately thought I was involved in the case, nope, I know surveyors. Different case, same outcome.

DWoolley

[hellsangle]

I emailed my old title officer . . .

and here's his reply: "No they cannot create the easement. There has to be a grantor and grantee and a granting clause. CC & R' are indexed as CC& R'S. Therefor there is no constructive notice on public record."

Sounds plausible to me . . .

Crazy Phil -Sonoma

[DWoolley]

I emailed my old title officer . . .

and here's his reply: "No they cannot create the easement. There has to be a grantor and grantee and a granting clause. CC & R' are indexed as CC& R'S. Therefor there is no constructive notice on public record."

Sounds plausible to me . . .

Crazy Phil -Sonoma

That makes sense to my way of thinking, but has not been my experience. We read through the CC&Rs to look for easements. We find "easements" a good percentage of the time. In the litigation the validity of the easement has not been challenged or at issue.

CC&Rs are generally recorded locally, there is constructive notice. I believe the operative words of conveyance may not be there - something to look into next time.

DWoolley

[Warren Smith]

Covenants are essentially a pledge to complete an obligation when circumstances are in place. This typically is for a future grant of, say, an access easement once an otherwise landlocked parcel is sold to a third party.

[Ian Wilson]

I understand the confusion. The CC&Rs dont LOOK like a deed.

The CC&Rs DO have a grantor and a grantee. The Grantor is the entity that/who owns the underlying fee to the parcel(s) upon which the CC&Rs are being created. The Grantees are the future owners of the parcels.

From: https://www.kts-law.com/easements/#:~:t ... agreement.

"Easements are usually created by a written document such as an easement agreement, deed or CC&Rs (usually recorded in the County Recorder’s Office) or a court order. Infrequently easements can be created without a written or oral agreement."

Example: The Oakland Yacht Club, the hotel, the Encinal Yacht Club, the Pacific Lighthouse Restaurant, the City of Alameda, and the Panomar Apartments all own parcels in a subdivision. The CC&Rs create cross uses for the parking lots and easement within the parking lots for trash enclosures and other features/uses. There are no other documents creating those easements.

[D Ryan]

I'm going to think out loud here; bear with me. A Parcel Map doesn't create easements (other than those created via "dedication" to a public agency). An ingress/egress easement shown over one parcel to get to another is not actually "created" until first conveyance out (whether mentioned in the deed or not - courts have held that this is the case but let's don't digress). I wonder if similarly, easements cited in CC&R's, which are attached to the land create the conveyance of the easements. Otherwise, I'm with Phil's attorney, you need the grantor/grantee action.

Just a thought...

Dave Ryan,
Arcata

[LS_8750]

Mr. Ryan, your parcel map example is exactly why I brought the question forth.
I've see a person loose his ingress/egress easement in court; it was shown on the parcel map and he had been using it for decades but it was never conveyed via deed. He had an alternative access that was not up to County Standards that he had also been using, and he really needed that paper easement shown on the map. Denied.

[Warren Smith]

I thought that a description conveying Parcel X "as shown on said map" would include appurtenant easement(s) as delineated for the benefit of Parcel X.

[hellsangle]

For what it's worth, this is the latest email from my retired title office friend:

"I have testified as an expert on this matter. Even though the CC&R say that there is an easement there has to be a conveyance. There needs to be a grantor and a grantee. Servient Tenement and dominant tenement. When we receive CC&R to record on a project we pour through them to find easements and make sure that the easements are properly created in the Deeds. Whether it it is a appurtenant easement or an easement in gross. The courts have deemed that in order for the easements to be valid there had to be delivery and acceptance. and constructive notice."

Have a nice weekend, all . . .

Crazy Phil - Sonoma