13.2 Easements, Rights-of-Way, Leases, and Other Encumbrances

Domain IV knowledge N on the January 2025 test plan is easements, rights-of-way, leases and other encumbrances. Knowledge S is exceptions and reservations of legal descriptions. Knowledge K (types of conveyances, including fee versus easement) sits next to both. Independent OpenExamPrep teaching here is the analysis skill: name the interest the writing actually creates, locate it on the ground, and refuse to upgrade or downgrade it because a client prefers a cleaner title.

An encumbrance is a right or claim that burdens title—easement, lease, deed of trust, tax lien, covenant, or similar load—without automatically wiping out the fee. The fee owner still has an estate. That estate is less useful, less insurable, or less exclusive because someone else holds a defined slice of use, possession, or security. Your map should show that slice where the writings and the ground let you show it. Your map should not announce that the slice has vanished because the grass looks unbroken.

Easements and rights-of-way in the Civil Code

Civil Code section 801 lists land burdens that may be attached to other land as incidents or appurtenances and are then called easements. Item 4 is the right-of-way. Other listed burdens include pasture, taking water, wood, or minerals, party walls, and (under 801.5) sunlight. Civil Code section 802 lists servitudes that may be granted and held though not attached to land—easements in gross. Item five is the right of way. When a description is silent on whether a way is appurtenant or in gross, do not invent a dominant tenement, and do not invent a personal right. Read the whole instrument. Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 treats grants of way like contracts generally: the extent of a servitude is determined by Civil Code section 806—the terms of the grant, or the nature of the enjoyment by which it was acquired. That case also states the construction preference that an easement is not treated as merely personal when it may fairly be read as appurtenant to some other estate.

Civil Code section 1105 is the fee presumption you should have in short-term memory: a fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended. A strip description, a purpose clause ('for road purposes'), and repeated 'right of way' language are the usual ways a lesser estate appears. None of those words is a magic wand. You still read granting clauses, habendum language, whether the instrument quitclaims a 'piece or parcel of land,' whether it only grants a 'right,' and whether later instruments treated the strip as land or as a corridor.

Railroad and highway corridors: fee versus easement

Railroad and road corridors are the exam's favorite fee-versus-easement laboratory. City of Manhattan Beach v. Superior Court (Farquhar) (1996) 13 Cal.4th 232 is a California Supreme Court decision you can cite without inventing a holding. The 1888 deed both used quitclaim language over a described tract and referred repeatedly to a railroad right of way. The Court held the terms were too ambiguous to decide fee versus easement from the face of the deed alone. It then used extrinsic evidence, including the grantor's later conduct, and concluded the grantor meant to dispose of its entire interest, so the railroad held fee that it could later convey to the City. Inside that opinion the Court discussed Highland Realty Co. v. City of San Rafael (1956) 46 Cal.2d 669 as stating a general rule that deeds for railroad rights of way are usually construed as giving a mere right of way even when other words look apt to convey a fee. General rules do not let you skip the deed on your job. Work an ambiguous corridor in this order:

1. Quote the granting words, any quitclaim-of-land language, and every right-of-way or purpose clause.
2. Locate the described strip, rails or pavement, and occupation.
3. Disclose that fee versus easement is still a title question if the writing conflicts with itself.
4. Leave quiet title and estate characterization to counsel; do not convert an ambiguous corridor into a judgment on the map.

Public road rights-of-way add another layer: the interest may be a dedicated fee, a dedicated easement, or a statutory or common-law public right, depending on the instrument, the map, and the accepting agency. BPELSG's PLS reference list includes Streets and Highways Code Division 9 (sections 8300–8363) as suggested material for highway-related terms. Use that code when a question actually turns on a named definition. Do not recite a private-road easement as if it were a state highway by reflex.

Leases and other encumbrances

A lease is a possessory estate. It is an encumbrance on the fee. A recorded oil-and-gas lease, a long-term ground lease, or a recorded memorandum of lease will often appear as a title exception. An unrecorded lease can still matter if a tenant is in possession, because possession can give notice. You locate buildings, tanks, well heads, crop lines, and occupancy. You do not opine that the lease is valid, expired, or subordinated. Deeds of trust, tax liens, and judgment liens are also encumbrances. They rarely have a unique geometry, but they can explain why a client wants a survey, and they can appear in the same title report as the easements you are asked to plot.

Do not confuse a license—a personal, typically revocable permission to use—with a recorded easement under Civil Code 801 or 802. If the only evidence is a neighbor saying 'they let us cross,' document the statement and the worn path. Do not label that path a Civil Code 801 right-of-way on the map unless a writing or a court has created that servitude.

Exceptions and reservations

Knowledge S is easy to mix up under time pressure. An exception withholds part of the grantor's existing interest so that part never passes. Classic form: 'excepting the northerly 20 feet of said lot.' If the grantor owned that 20 feet, it stays in the grantor (or in whoever already holds it). A reservation lets the described estate pass and creates a new right, usually in the grantor. Classic form: 'reserving an easement for ingress and egress over the northerly 20 feet.' The grantee takes the fee to the 20 feet, loaded with the new easement, unless other words show a different plan.

Willard v. First Church of Christ, Scientist (1972) 7 Cal.3d 473 is the California Supreme Court case on reservations to strangers. A grantor sold a lot with a clause subjecting the grant to an easement for church parking. The common-law rule had been that one cannot reserve an interest to a stranger to the title. Willard held that, on those facts, the reservation vested the parking easement in the church. Footnote 1 of that opinion states the distinction you need: an exception prevents some part of the grantor's interest from passing and cannot vest an interest in a third party; a reservation theoretically creates a new interest. Willard abandoned the stranger-reservation bar for that case so the grantor's intent could be given effect. It is not a license to invent third-party rights the deed does not support.

Civil Code section 1069 supplies the construction tilt: a grant is interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body as such to a private party, is interpreted in favor of the grantor. Use 1069 when two readings of a reservation are otherwise even. Do not use it to ignore monuments, and do not use it as a substitute for Civil Code 1105's fee presumption.

Worked example: 20 feet excepted versus 20 feet reserved

A 100-foot-deep lot is conveyed 'excepting the northerly 20 feet.' You locate the lot corners. The remainder you can describe for the grantee is the southerly 80 feet. The northerly 20 feet did not pass. If instead the deed grants the entire lot 'reserving a nonexclusive easement for road and utilities over the northerly 20 feet,' the grantee owns the 20 feet in fee, subject to the easement. Improvements in that 20 feet are not automatically trespasses; they may unreasonably interfere with the easement, which is a different question. Map the 20-foot strip, quote the creating words, and show whether the writing is an exception or a reservation. If the deed uses 'subject to' without saying who holds the benefit, disclose the ambiguity rather than picking a winner.

Exam traps

Distractors will say that every 'right of way' is an easement, that every railroad corridor is fee, that a lease is not an encumbrance, or that exception and reservation are interchangeable. Manhattan Beach shows why the first two shortcuts fail: the Court needed the whole deed plus extrinsic evidence. Willard shows why the last shortcut fails: exception and reservation do different work, and California will look at intent when a reservation names a third party. Your exam answer should locate and disclose. It should not quiet title in the utility, the railroad, or the church.