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Homeowners Association Found to Have Equitable Easement Despite Lack of Recorded Document

Construction Disputes and Neighbor Issues by Simon Offord, Esq.

Sumner Hill is a homeowners association in a gated community in Madera County.  The Sumner Hill residents historically enjoyed access to a private road that leads to the nearby San Joaquin River. That access was jeopardized when a portion of the Sumner Hill property was sold to an outside developer.  The developer first sought to obtain public access to the river through the Sumner Hill development, and once denied, installed a fence which restricted access to the river by the Sumner Hill residents. The Sumner Hill residents believed that the access road was part of the association’s common area and that their easement rights had therefore been violated.

The association filed suit for declaratory relief, nuisance, and slander of title, and was ultimately victorious at trial.  Specifically, the trial court declared that the Sumner Hill’s residents would have continued rights of access to the river and awarded damages to Sumner Hill on the slander of title cause of action.  On appeal, the developer defendant contended that the association and/or its residents did not possess any equitable easement rights to use the access road and that the damages awarded were improper.

Evidence was presented at trial that the initial developer’s sales agents represented to Sumner Hill’s prospective purchasers that the access road would indeed remain the association’s common area with easement rights reserved for the benefit of the association’s members.  Moreover, these representations were made with reference to a tract map which supported the sales agents’ claims.

The appellate court affirmed the trial court’s decision, heavily based on the fact that when the subdivision lots were marketed and sold it was represented to prospective purchasers that they would have unrestricted access to the common area…” (citing Bradley v. Frazier Park Playgrounds (1952) 110 Cal.App.2d 436).  This ruling included equitable easement rights for the owners in Sumner Hill to freely use the access road to the San Joaquin River.

The Court reached this decision despite that there was no written instrument substantiating the easement and there was no clear servient estate.  Additional reasons given for the ruling included: the private gated community had been overtly maintained as such for 22 years, the sole access to the River for the development is down the access road in question, and the defendants purchased their land with notice of the private gated community.

For Slander of Title, Attorney Fees are Adequate Damages

Until this decision, it had appeared that in order to have an action for slander of title under a prescriptive easement or adverse possession, the interest to be protected must be perfected by judicial action.  Here the Court declared, “no judicial action was necessary to perfect or establish plaintiff’s easement rights.”  According to the Court, the Sumner owner’s rights accrued and vested when they purchased their lots because 1) the map referenced in the deeds showed the access road, 2) the promises the sales agents made did not extinguish their easement rights.

The final fun piece of this case came when the Court declared that when slander of title is caused by a recorded document, attorney’s fees alone are adequate damages.  The Court likened slander of title to a malicious prosecution case where only special damages may be incurred.

This case creates interesting precedent as it now allows a plaintiff to recover damages for slander of title when there is no actual monetary damage proven other than their attorney fees.  This will provide plaintiffs another sword to wield and further motivation to sue for slander of title.  It will be interesting to monitor the cases in the future and see whether slander of title causes of action begin to gain traction.

If you have questions about your easement rights, or if you have any other questions about real estate legal issues, contact the Law Offices of Peter N. Brewer at (650) 327-2900, or on the web at

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