Legal Question in Real Estate Law in California

Is it possible for a non-exclusive easement on my property to be a non-exclusive easement and a "common area?" That is what my HOA is saying. They are saying, because of the way rule 9.5 is written below (see below, I live on Lot 30), most of my backyard, over which the HOA has an easement right for landscaping and maintenance (which they did not exercise for 20 years), is also a common area. They are saying this because a fence was built around my backyard (blocking their easement right) over 20 years ago. They are now saying I have to tear down the fence because, according to rule 9.5, there can be no structures blocking their easement access to my backyard slope, which they are also saying is a common area. But how is this possible? I thought all common areas were owned by the HOA. I own my property, and the easement right is inside my property lines. So, how can the HOA say my backyard is "common area?" I am telling them that under California law, if an easement has been fenced off for over 20 years and not maintained, it has been abandoned. That describes this situation perfectly. I also argue that it is completely unreasonable for this HOA, after 20 years, to ask me to remove a structure on my property that was built by the original owner, and a structure that no previous HOA complained about.

Chris Hendrickson

9.5 Easements for Maintenance. Slope Lpndscapinc and Monu�

nents. Portions of Lot 4, Lots 29 through 36, inclusive, and Lot

58 of Map No. 12005, Lots 70 through 74, inclusive, Lot 152, Lot

153, Lot 154 and Lot 158 of Map No. 12035, and Lot 161, Lot 162,

Lot 163, Lots 184 through 190, inclusive, and Lot 217 of Map 12037,

all as more particularly described on Exhibit "C" and shown on

Exhibit "fl," both attached hereto and incorporated herein by this

reference, are hereby granted to the Association as non�exclusive

easements for the purpose of planting, replacing and maintaining

landscaping, slope maintenance, erecting, repairing, replacing and

maintaining monument signs and installing, repairing, replacing

and maintaining any utility lines to such monument signs ("Association

Maintenance Easements") , all which shall be and remain a part

of the Common Area.


Asked on 9/20/12, 2:19 am

1 Answer from Attorneys

You are asking to interpret one very discrete clause of one of several documents that specifically cross-references defined terms "Common Area" AND cross-references other documents, with none of the other relevant documents or information. That is impossible. There is no way you will get an answer worth $0.02 until you take ALL the relevant documents to a knowledgeable attorney and have them reviewed.

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Answered on 9/20/12, 4:35 pm


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