Legal Question in Real Estate Law in California

You should direct the question to attorney Anthony as he may not otherwise see it.

The answer depends upon the reasons for the easement; if it is to put in water lines then the need may not have yet arisen so there is no abandonment. If the HOA does not need the easements why not try to get the Board to formally abandom them based upon the cost involved of teraing down the fences, fixng the landscaping that will be damaged, maintaining the easements, etc.

Mr. Roach's original response was only correct in explanation of the technical use of easement terminology. In fact, it is possible to extinguish an easement by fencing it in or otherwise interfering with the easement holder's rights under the easement. The problem in your case is that when the fencing or other interference is done by agreement, and especially when there was a gate installed so that the owner of the easement could continue to exercise rights under the easement, there has been no hostile or adverse interference with the easement, which means the easement is in full force and effect. For details see my answer to your original question.

With your additional facts, however, your situation gets more complicated and interesting. Another way an easement may be extinguished is by abandonment. Under Chapter 7. of the California Civil Code, easements are abandoned when 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.

So you would have to prove the fence was built no later than November, 1991, AND that the HOA never used the gate to come onto the portion of what is now your property governed by the easement. But there is a bigger catch even if you can prove the easement was abandoned. The holder of the easement can record a notice of intent to preserve the easement to avoid abandonment AND can even do so after a quiet title action for abandonment of the easement has been filed if the owner of the easement is willing to pay the attorneys fees and court costs the owner of the servient property incurred in filing the action.

Where it gets more interesting, however, is that it doesn't sound like your fence is an actual interference with the easement. If the easement is for landscaping and maintenance purposes, and you have a gate in the fence that permits access to the area governed by the easement, allowing the easement to be used as intended, the owner of the easement has no right to have the fence removed. They may have the right to remove your plants and landscape as they wish, but I'm not seeing how they get to remove the fence. To be really sure, however, would require reading the easement granting document(s).