Easements, Deed Restrictions, and Title Before You Build an ADU

Zoning answers what may be built on land like yours. It does not answer what YOUR land is already committed to, and that second answer lives somewhere most owners never look: the recorded documents attached to the parcel. Easements, covenants, agreements, and restrictions were recorded by people long gone for reasons that made sense at the time, and they run with the land regardless of whether anyone remembers them. An ADU is exactly the kind of project that collides with them, because it puts a permanent structure on the part of the lot nobody has used for anything. This article is about reading that record before the design assumes anything. It deepens the ADU guide and precedes the physical work the lot requirements article describes.

The standing warning, doubly here because this is legal ground. Nothing below is legal advice, and no recorded instrument means what a summary says it means; it means what it says, read by someone qualified, applied to your parcel. California ADU law also continues to move, including in how it interacts with private restrictions. A qualified real estate attorney and a title professional hold these answers, and the City of Claremont holds the land-use ones. Verify before you rely on any of it.

Start with a preliminary title report

The practical first step is to obtain a current preliminary title report on your own property and actually read the exceptions, not just the ownership line. Owners often have the report from their purchase filed away unread, which is understandable and unhelpful, since the exceptions section is precisely the part that matters now.

Order the underlying documents, not only the list. A title report typically identifies recorded instruments by number and brief description; the description will not tell you where an easement runs or what a covenant actually forbids. Get the documents, and get them read alongside a survey or a plot plan so that a line on paper becomes a line on your lot.

Easements: someone else's right in your land

An easement gives another party a right to use part of your property for a purpose. The common categories on residential parcels are utility easements for lines and equipment, access easements allowing passage, and drainage easements concerning water.

The ADU consequence is direct. Building over an easement, or in a way that obstructs it, ranges from inadvisable to impossible depending on the easement and the holder, and this is a frequent reason a back-corner footprint has to move. It is also a reason a project can proceed happily and then meet a problem years later, when a utility needs access to what is now underneath a bedroom.

Find them, plot them, and design outside them unless a qualified professional advises otherwise. Where an easement holder's consent or a modification is theoretically available, treat that as a slow, uncertain process rather than a planning assumption. And note the connection to services: an easement is often exactly where an existing utility or sewer line runs, which is why title review and the locate work described in the sewer lateral article belong in the same week.

Private covenants and what state law has done to them

Recorded covenants and restrictions are private agreements binding the land, and older Claremont tracts can carry them independently of any active homeowners association. Some address building placement, materials, or the number of dwellings permitted.

This is an area where state law has intervened, and the direction of travel over recent legislative sessions has generally been to limit the effect of private restrictions that would prohibit ADUs outright. That is a genuine and useful shift, and it is also exactly the kind of statement that should not be relied on from an article. The interaction between a specific recorded restriction and current state law is a legal question with a current answer, and it belongs to an attorney. Where an active association is involved, the HOA article takes up that relationship in its own right.

The practical posture: do not assume an old covenant defeats your project, and do not assume it is dead. Get it read.

Restrictions your own permit may create

There is a category owners rarely anticipate, which is a restriction the ADU project itself puts on title. Depending on the unit type and the rules in effect, a city may require a recorded covenant or deed restriction as a condition of approval, addressing matters such as owner occupancy for certain unit types, prohibitions on separate sale, or limits on rental duration.

Whether any such requirement applies to your project, and what it says, is a current-rules question for the city, and the specifics have changed over time. Two things are worth knowing in advance. It becomes part of your title, and it binds future owners, which means it is also something a buyer's attorney will read at sale. Ask what will be recorded before you accept an approval, and keep a copy with the rest of the project record. The consequences at resale are covered in the selling guide, and the separate-sale question specifically in the separate sale article.

Boundaries, encroachments, and the fence that is not the line

An ADU pushed toward a property line makes the exact position of that line suddenly important, and fences are notoriously unreliable evidence of it. Fences get replaced along the previous fence, drift a little each time, and settle wherever the ground was convenient decades ago.

Where a design sits anywhere near a boundary, a survey is cheap insurance. It resolves both directions of risk: your structure encroaching on a neighbor, and a neighbor's existing improvement encroaching on the space you intended to use. Discovering either after framing is among the worst positions in residential construction, and it is entirely preventable for the price of a surveyor.

Lenders, insurers, and consistency

Two smaller points that reward attention. If financing is involved, the lender has its own interest in what is recorded against the property, and an approval condition that turns up late can complicate a draw or a refinance; that is worth raising early with whoever is funding the work, as the ADU financing guide discusses. And keep the story consistent across everything you sign, since what you tell the city, the lender, the insurer, and eventually a buyer should be the same description of the same building.

The order to work in

Order a current preliminary title report. Obtain and read the underlying recorded documents with qualified help. Plot the easements on a plan. Survey the boundaries if the design comes near a line. Ask the city what covenant or restriction, if any, its approval will require. Only then commit to a footprint. It is a few weeks and a modest fee at the front of a project, set against the possibility of an unbuildable design, a recorded surprise, or a structure sitting where it may not be. Owners who skip it are usually fine and occasionally not, and the occasional case is severe enough that it belongs in the ADU mistakes list. This is general information and not legal advice; a qualified attorney, a title professional, a licensed surveyor, and the City of Claremont govern every specific. Anthony Grynchal has been licensed in California since November 2009.