Court Provides New Interpretation of Exclusive Easements

February 19, 2009

In the recent decision of Gray v. McCormick, 167 Cal. App. 4th 1019 (2008), the Court of Appeal ruled that any use of the surface area of an easement by the servient tenement was inconsistent with the “exclusive” rights granted to the dominant tenement. The Grays and McCormicks owned adjoining properties in an upscale residential development subject to a master set of CC&Rs. The CC&Rs granted the Grays “an exclusive easement of access, ingress, and egress” over McCormick’s lot. A dispute arose between the neighbors as to the rights of the McCormicks to use the easement. The court ruled in favor of the Grays, finding that they had an exclusive right to use the easement and that any use of the easement by the McCormicks was inconsistent with that exclusive right.

The Gray decision marks a significant departure from previous case law interpreting exclusive easements. Previously it was generally understood a servient tenement holder could use an easement area is any way so long as such use did not interfere with the ingress, egress, or other rights specifically granted to the dominant tenement holder in the easement grant -- regardless of whether the easement rights were “exclusive” to the dominant tenement owner. In light of Gray, landowners, developers, and land purchasers should be particularly careful in their review of easements purporting to grant exclusive rights.