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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 38878
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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Can a prescriptive easement defeat a covenant in CC&Rs?

Customer Question

can a prescriptive easement defeat a covenant in CC&Rs?
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Loren replied 9 months ago.

Good afternoon. I am Loren, a licensed attorney, and I look forward to assisting you.

Could you provide some more detail as to what is happening? What is the covenant and how does the actual use contradict the covenant?

Customer: replied 9 months ago.
The CC&Rs have the equivalent of a view easement that restricts the height of trees creating an easement to effectively use the airspace above a piece of property. If the airspace has been used prescriptively for five years and meets all the other requirements of notorious, adverse, claim of right, etc., does the prescriptive easement come into existence trumping the "view easement?"
Expert:  Loren replied 9 months ago.

Thank you for the additional information.

No, a covenant and prescriptive easement are 2 different things and the prescriptive easement will never trump a covenant recorded and incorporated by reference in the language of the deed.

However, if the Association does not enforce the covenants in a uniform and consistent manner with all the owners, then it is possible that any enforcement action would be barred by prior non enforcement.

Customer: replied 9 months ago.
Are you saying that the "view easement" in recorded CC&Rs is not subject to loss by prescriptive use? What authority is that based on ?
Customer: replied 9 months ago.
We are talking about enforcement by a property owner, not the association, in a NON-CID development.
Expert:  Loren replied 9 months ago.

Correct. A prescriptive easement is established by court order when there is a suit to quiet title.

The covenant would stand unless it is amended by a written instrument or the property owner(s) agrees to revoke the the covenant.

Customer: replied 9 months ago.
As I said, what authority supports your contention that a quiet title action for prescriptive easement could not prevail over a "view easement" that has been adversely used to meet the requirements for acquisition of prescriptive easement/right?
Customer: replied 9 months ago.
These are the elements of prescriptive easement:1. The use of land/easement must be open and notorious;
2. Continue and be uninterrupted for a period of at least five (5) years (occasional use could establish
the prescriptive use right for the same frequency, e.g., on weekends);
3. Be adverse; and
4. Subject to a claim of right (i.e., not consented to).What authority supports your position that, meeting the above elements, does not result in a prescriptive easement for the airspace right had by another?
Expert:  Loren replied 9 months ago.

Courts do not favor prescriptive easments and I have never, in 30 yrs of real estate practice, come across a court willing to terminate a written and agreed covenant in favor of a prescriptive easement.

Covenants, by virtue of the written nature and their being part of the chain of title, are, simply, more authoritative in the view of the court.

If you are asking me to do legal research, that is not feasible at these prices. Subscription rates for legal research sites can run over $100 per hour.

I am well aware of the elements of prescriptive easements and you are certainly free to file a suit to quiet title. If you can prove the covenant has been abandoned, I think that is the more likely to prevail, or you can argue both in the alternative.

Customer: replied 9 months ago.
Isn't abandonment essentially the same as loss by prescription. There is no "prescriptive period" for abandonment while there is for a prescriptive easement. What you are saying is that a covenant cannot be lost by failure to enforce the rights provided by it. That doesn't make a lot of sense to me and that is why I asked for some authority.
Expert:  Loren replied 9 months ago.

If the covenant is not enforced then you can sue to claim abandonment, but I think it is not categorized as a prescriptive easement. A prescriptive easement is an affirmative declaration and an abandonment is not. That is here I think you trip yourself up if you try to present abandonment of a covenant as the establisment of a prescriptive easement. It is just the abandonment or of the covenant.

Expert:  Loren replied 9 months ago.

The only authority I can present is my instinct based upon the 32 yrs of real estate law practice.

Customer: replied 9 months ago.
I am not suggesting the claim of abandonment. I am stating that the easement of another was used adversely for the prescriptive period, without permission, openly and continuously. For example, a "view easement" that was obstructed for over 10 years. Thus, the claim for prescriptive easement.
Customer: replied 9 months ago.
Then you are dismissing the provisions of the CC and the CCP based on instinct? (1007 and 321)
Expert:  Loren replied 9 months ago.

I think I should probably opt out so that another expert can assist you.

Customer: replied 9 months ago.
OK.
Customer: replied 9 months ago.
Hello?
Expert:  Maverick replied 9 months ago.

Welcome to Just Answer! My name is Maverick. Please give me a few minutes to review your inquiry. Thank you for your patience.

Customer: replied 9 months ago.
Sure
Customer: replied 9 months ago.
Expert:  Maverick replied 9 months ago.

Still looking into this. Thank you for your patience.

Customer: replied 9 months ago.
I have an appt. -- I will return in about an hour but will leave this link open
Expert:  Maverick replied 9 months ago.

Okay, you should receive an email when I have posted an answer....

Expert:  Maverick replied 9 months ago.

The closest case I could find for you on this issue from a free legal database is at this link. In this case, it appears that the association's CC&Rs limited access to a marina to Coronado Cays homeowners or renters; and that sponsorship of nonresidents was not permitted. Nonetheless, nonresident tenants continued to access the marina through the association's common area. It further appears that the court affirmed a judgment in favor of the non-residents on the ground that the evidence supported the trial court's finding of a prescriptive easement.

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Customer: replied 9 months ago.
That really is not a substantive reply given what preceded it.
Expert:  socrateaser replied 9 months ago.

Hello,

I am a member of the State Bar of California, the Bar of the U.S. District Court for the Central District of California (San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, San Bernardino, Riverside Counties), and the California and National Associations of Realtors. Please permit me to assist.

What you are describing is not a prescriptive easement. The reason for this is that under California law, an exclusive prescriptive easement cannot be created in favor of a single individual, because to do so is to effectively permit adverse possession without the payment of property taxes for the five-year period. See Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305 ("An easement that would divest the owner of the property from 'entering or making any use of their land' is not a prescriptive easement.")

Rather, what you describe is the alleged abandonment of a restrictive covenant by an association. See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal. App. 4th 1356, 1380."The right to enforce a restrictive covenant may be deemed generally waived when there are 'a sufficient number of waivers so that the purpose of the general plan is undermined,' in other words, when 'substantially all of the landowners have acquiesced in a violation so as to indicate an abandonment.'")

Since the act of abandonment is effectively a waiver of the right to enforce the covenant, there is ordinarily no statute of limitations issue required. However, Cal. Code Civ. Proc. § 336(b) does provide a statute of limitations beyond which an association (or anyone else) may enforce the violation of a restrictive covenant. Consequently, if it is proved that the tree has been blocking the view for more than five years, then it is likely to be impossible to obtain a court order to top or trim the tree so as to comply with the CC&Rs.

I hope I've answered your question. If you require further clarification, I ask only that you say, “THANK YOU,” when you ask your follow-up question – so that I know that you appreciate my efforts in your behalf.

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Expert:  socrateaser replied 9 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

Customer: replied 9 months ago.
On the contrary, what I am describing is a prescriptive easement. I am not describing an exclusive prescriptive easement as I am not seeking title to any real property which would deprive the legal owner of a fee interest. I am talking about obtaining a prescriptive right -- the right to use the airspace above the property of the servient tenement -- not the title to the dominant tenement's real property. The dominant tenement is benefited with what I describe as a "view easement." The possessor of the view easement has not had "a view" for the prescriptive period as set forth in CC 1007 and CCP 321. Thus, the question again: does fulfilling the requirements of a prescriptive rights easement via trump the easement granted in the CC&Rs? You are looking at it from the perspective of abandonment by the dominant tenement easement holder. I am talking about the owner of the burdened property (the airspace owner) seeking use of the airspace by prescription as a result of fulfilling all of the requirements set forth for prescriptive easement -- not adverse possession.
Expert:  socrateaser replied 9 months ago.

Thank you.

I use the Thomson Reuters Westlaw(r) legal research system, which is the same system used by every California state and federal court, as well as every major California law school. I conduct legal research every day for clients and it is extremely rare that I am unable to find an definitive case law authority where one exists.

I find nothing on point with your question. There is a case discussing airspace and prescriptive easements with reference to avigation: Drennen v. County of Ventura (1974), 38 Cal.App.3d 84 (no prescriptive easement where overflights did not interfere with owner's actual use and enjoyment of land).

Based upon the above-cited case it is possible to obtain a prescriptive easement for airspece under California law. Whether or not the easement defeats a restrictive covenant, is uncertain. However, I see no reason why such a ruling could not be made, given that the Drennen court recognizes that a prescriptive easement over airspace is possible, and not materially different from any other prescriptive easement.

That's the best I can do. Based upon my Westlaw(r) search, there is no other "needle in the [proverbial] haystack" of California law.

I hope I've answered your question. If you require further clarification, I ask only that you say, “THANK YOU,” when you ask your follow-up question – so that I know that you appreciate my efforts in your behalf.

Thanks again for using Justanswer!

Expert:  socrateaser replied 9 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

Customer: replied 9 months ago.
Thanks thought I did rate you
Expert:  socrateaser replied 9 months ago.

Nope. No rating, yet.

Thanks again for using Justanswer!