When Language Clearly Gives Holders Of An Easement On Another’s Property The Exclusive Use Of The Easement Area, The Owner Of The Property Has No Right To The Use Of The Easement Area

In Gray v. McCormick, (— Cal.Rptr.3d —, 2008 WL 4661811, Cal.App. 4 Dist., Oct. 23, 2008), a California Court of Appeal considered a dispute between two neighboring property owners over the use of an easement one held over the other’s property. The court ruled that since the language defining the easement expressly declared the area was for the exclusive use of the holder of the easement, and because exclusive easements are not illegal, the owner of the property had no right to access the easement for any purpose, even if it did not infringe upon the use of the area by the holder of the easement.


Douglas Gray and Daniel McCormick owned adjacent properties in the Coto de Caza development in Orange County. The terms of the development’s Declaration of Covenants, Codes and Restrictions and Reservation of Easements (“CC&Rs) provide that the owner of Gray’s property has an exclusive easement over a 16-by-90 foot area of McCormick’s property, connecting Gray’s property to the street. Gray planned to fence the easement and pave it for use as a driveway. McCormick had used the easement area for various purposes, including the moving of rubbish and the passage of his horses.

Gray sued to stop McCormick from accessing the easement asserting McCormick had no right to use the easement. McCormick countered that he should have access to the easement area on his property provided that he not infringe upon Gray’s access, ingress and egress rights. The trial court found in favor of McCormick, and Gray appealed.


The issue, the court said, is the degree of exclusivity granted to Gray by the language of the CC&Rs. Reviewing that language, the court found it clearly and repeatedly granted exclusive use to Gray and no right of access to McCormick. The CC&Rs’ language “expressly defines the easement as an ‘exclusive easement of access, ingress and egress.’ It specifically states that ‘the Easement is created for the benefit of the Owner of Lot 6 (Gray’s property)’ It emphasizes that the ‘use of the Easement by the Owner of (Gray’s property) and such Owner’s family, guests, tenants and invitees shall be exclusive.”

Nowhere did the CC&Rs carve out any exception for property owners that would allow for access by McCormick, the court said, contrary to cases cited by McCormick in which property owners won some rights of access to easements on their properties. As a practical matter, the court added, “It is inconceivable that the owners of a multi-million dollar property who build out 90 feet of access drive improvements would be expected to share that drive with a neighbor.”

Finally, the court rejected McCormick’s contention that exclusive easements are prohibited under California law. Citing Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, a case where a water district was granted an exclusive easement over property it did not own upon realizing its reservoir had inundated that property. The practical effect of the exclusive easement was to completely exclude the owner from the use of 1.68 acres of his property, the court noted.

Since the language creating the easement on McCormick’s property, and granting exclusive use to the owner of Gray’s property, was clear, and because such an exclusive easement is not illegal, the court determined the trial court erred in ruling that McCormick had a limited right of access. That portion of the decision was reversed and McCormick was precluded from making any use of the easement.


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Karina Terakura | KMTG Sacramento Office 916.321.4500