Legal Question in Real Estate Law in California

I have a question regarding a reciprocal agreement that part of our residential development is being asked to sign, in order for the proposed housing development adjacent to our development needs in order to be able to have their development plan approved by the county. Our development is a small gated community of 24 homes. The proposed housing development to the east of us, in order to have their plan approved, must provide emergency exit routes in two opposite directions. In order to do that, they are having to propose an emergency exit that accesses our development, and would cause their residents, in case of an emergency, to be able to drive through our development in order to exit to the west. Our development has no "common property", so all of our lot lines extend out into the middle of our streets. We already have an existing easement agreement with each other, to allow the residents to drive on the streets, and this proposed developer is asking us for a subordination to this existing easement, to allow their residents, in the event of a serious emergency (i.e., wildfire, earthquake), to be able to open a locked gate (electronically openable by an HOA board member or emergency responders, or by a resident, using a wrench), and drive out through our development. This affects 10 of the 24 residents, as the exit route crosses 10 of the lots. We are asking for some concessions from the proposed development in return for signing the reciprocal agreement that requires the new developer to give us some attractive concessions (such as a 20' planting barrier between our developments, the building, improvement and maintenance of that emergency road and gate, a camera at the gate, and several other concessions that are beneficial to our development). The developer is in agreement with our requested concessions. My question is this - we have two of the homeowners who are stating they will not sign this reciprocal agreement unless this new developer remunerates them in some amount. I am wondering what is commonly done in these circumstances, and what would a reasonable remuneration amount be, if it is commonly asked for? Our fear is if these two homeowners prevent this reciprocal agreement from being signed as it stands, the county can come in, and exercise an existing IOD that runs through my property and my neighbor's property that will carve out a very large section of both of our lots for an access road to that development. And, the road would be made public, and we would then lose our gates, losing our gated community status. Both of these things would significantly devalue our property. I doubt we would have any legal recourse against the two holdout homeowners, but if I could find out if a remuneration is often part of an agreement such as this, and what might be a "reasonable sum", I might be able to convince the new developer to remunerate all 10 affected homeowners, and we can then move forward.

Asked on 2/13/13, 2:49 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

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By "IOD," I'm assuming there is an irrevocable offer of dedication. Because both the likelihood of the county exercising the IOD and the consequences of an exercise are highly dependent upon local circumstances, I think you (and any other nearly-identically-affected owners) should seek local advice from an attorney that is familiar with how your county is likely to act in this situation, whether the developer has political clout, and can otherwise advise you with local know-how and experience. This is a touchy situation and I think you will be wise to enlist the aid of counsel who can look at the situation "on the ground" and maybe with some political know-how in this field of law and some awareness of the new developer's strengths and weaknesses, legally and politically.

Answered on 2/13/13, 7:59 pm

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