California Surveyors Forums

Spend some time reading this case and thinking about how this has created a 180º turn in the past 150 years of judicial thinking in California.

I'd LOVE to hear from any of you guys and gals in the public sector as to how you think this will affect Lot Line Adjustments in California. Mike Durkee!, your take?

Cheers, all!

Ian

Interesting case. I don't have a comment, I just want to receive an email when this is replied to. I also would like to hear from some of the public agency (county or city) members here and Mike Durkee.

Thanks

I recall scanning this briefly some months back (didn't read the whole thing again just now, am going from memory) and was fairly flabergasted. The court had no clue of fee vs. easement. Without getting into the whole melange of basic land use codes this judgement conflicts with, the most basic one that comes to mind is "setback violations". And that's just to get started.

It's going to be hard for anyone to take this seriously.

Dave Ryan

Dave:

The CA Supreme Court refused to decertify the case and passed on hearing it. In essence, the highest court in our state said that the decision is good enough to publish, remain published and create new law...so good that they aren't interested in wasting their time in re-examining the case!

Whiole I agree with you regarding setbacks and zoning, you must admit that the property owners are back in charge when it comes to what they can claim/defend/etc.

I don’t see where the court’s decision is creating a 180° turn. A private easement conveying the right to _________ (fill in the blank) is in fact giving the right to _________ (so far as other laws are not violated) and nothing more. The easement was for “parking and garage purposes.”

The appellants did not suggest that the original grantor violated local land use regulations. The fact that the City of Glendale issued a building permit tells me they did some sort of analysis and was ok with the garage location.

Ben

Ben:

In describing the rights and privileges that come with fee ownership of land, one of the most significant rights is the right to exclude others.

Until this case, that right was so significant that cases in which the “non-owner” excluded the fee title owner from the property by means of fences, etc. were decided in favor of the fee title owner unless a case could be made for adverse possession.

In one Maryland case, the sister of the adjoiner who erected a fence barring the plaintiff from use of an easement made a comment during her testimony at the original trial that was kept in the decisions right through the case and has been cited numerous times across the country. When asked what the purpose of the fence, she replied “Nothing says, ‘Stay Out!’ like a barbed wire fence.”

Regardless of the stated purpose for the easement, until Blackmore v Powell, virtually every case in which the use of the easement created an exclusory situation that barred the fee owner from use of the property was held to be something other than an easement. Although the garage in Blackmore was in keeping with the stated purpose for the easement, the very nature of the garage meant that the fee owner would be excluded from use of the garage.

Prior to Blackmore, if I needed a three foot wide strip from my neighbor to widen the driveway so I could get my motor home down the side, I really needed to file for a Lot Line Adjustment. Today, as long as setbacks are not violated, all I need is an easement from my neighbor for ANYTHING; pools, garages, driveways, sheds, out buildings, etc.

So, you see, Ben Blackmore flies in the face of over 150 years of California judicial thinking.

That 'exclusion of others' is why we don't allow easements for any sort of building encroachments on parcel maps. I'm sure there are easements out there that we don't know of but anything through our office would require an LLA.

Ian, I see what you're saying and I agree.

I also believe that when the original owner granted the easement, he gave up his right to "exclude others" and to prohibit the use of the easement; he became the servient tenement.

I’ve recently dealt with an example where the Catholic church owns a parcel that was granted to them with the reservation, “reserved for school building” purposes. Even though the church is the fee owner, the original grantor has reserved the right to build buildings on the land.

Ben

Ben:

Granting an easement does NOT give away one's rights to exclude others. The circle of people who may exclude others simply expands to include the entity to which the easement was granted.

If I grant you an easement for ingress and egress over the westerly 30 feet of my property, I can no longer exlude YOU from suing the strip as a driveway. Howver, I can exclude you from using it as a storage area, a building site, a parking lot, etc. Together, we can exclude all others from using the strip as a driveway, too!

Just because the easement or the reservation was created does not mean that it would have held up for building prior to this case.

Gary:

In the face of this decision, unless you can prove a setback issue, I think you would now have a very hard time (read virtually impossible) enforcing the requirement for a Lot Line Adjustment. Of course, you'd need to face a surveyor who had a client with a deep enough pocket to take your county on in court.

Remeber that the State Supreme Court refused to decertify this case AND refused to hear the arguements again. Essentially, by these actions, the Court put their blessings on the decision.

Easement holder CAN bar even the fee title owner from access, even behind locked doors of a building constructed in the easement. The local agency certainly can't change that, barring any challenges due to setbacks or zoning.

It's a brave new world here in California!

Good question David. I don't know of any sections of code that state directly that the dominant tenement owns his improvements. Your water line example says he does. Another example would be a gas and electric company owning their towers that have been built over their easement. In which case they are the dominant tenement and as Blackmore reiterates, the dominant tenement is in fact dominant.

David,
I'm neither a lawyer or an assessor, but my understanding is that:
The tax assessor can assess the garage as unsecured property and bill the owner of the garage, not the underlying fee owner.
It does need to be worked out by the parties involved (building dept, owners, assessor) since the typical assement for a permanent structure is as secured property affixed to the underlying fee.

Personally I don't think this ruling will replace PLA's. I think most folks involved, including those of us who advise the laymen, will recognize the benefits of fee transfer in most cases.

I also took note that this ruling appears to only be applicable to certain situations, particularly when the exclusive use is only for a portion of an easement, and when the exclusive use is for only a particular purpose. I understand the ruling to support the idea that exclusive easements are often really fee title, but that it is a case by case situation, not an absolute. Don't you love our law system? I see that lawyers and judges will still be able to argue similar cases with the outcome defined by the fine details of the particular situation.

Another oberservation is that lending companies and insurer's may red flag this situation as an encroachment even if it really isn't a clouded title.

Jeff Steffan LS PE

David,
I'm neither a lawyer or an assessor, but my understanding is that:
The tax assessor can assess the garage as unsecured property and bill the owner of the garage, not the underlying fee owner.
It does need to be worked out by the parties involved (building dept, owners, assessor) since the typical assement for a permanent structure is as secured property affixed to the underlying fee.

Personally I don't think this ruling will replace PLA's. I think most folks involved, including those of us who advise the laymen, will recognize the benefits of fee transfer in most cases.

I also took note that this ruling appears to only be applicable to certain situations, particularly when the exclusive use is only for a portion of an easement, and when the exclusive use is for only a particular purpose. I understand the ruling to support the idea that exclusive easements are often really fee title, but that it is a case by case situation, not an absolute. Don't you love our law system? I see that lawyers and judges will still be able to argue similar cases with the outcome defined by the fine details of the particular situation.

Another oberservation is that lending companies and insurer's may red flag this situation as an encroachment even if it really isn't a clouded title.

Jeff Steffan LS PE

Excellent points, Steffan! And what the ehck happens when the garage builder defaults on the construction loan? How on earth will THAT foreclosure play? DooooH!

The Court got it right, let the revolution begin!

There is no violation of the Map Act here, this is glaringly obvious. Creating an Appurtenant easement does not create a seperate estate that can be sold or leased seperately. Bringing in side issues such as setbacks and LLA ordinances (which are local by definition) is not relevant to the primary question of whether there is a violation of the Map Act.

Say you are driving say 10mph over the speed limit and a Police Officer stops and writes a citation. For whatever reason on the citation of the Officer writes down the Code Section for failure to stop at a stop sign and even writes that in the little box where the brief description goes. Now you get into court and show the judge that where you were out in the country is 10 miles from the nearest stop sign the judge has no choice but to find you not guilty of running a stop sign. So now Sgt Friday sings out in court after the decision, "But your honor he was driving 10 mph over the speed limit!!!" The Judge will say, and rightly so, "Sgt that's not the case you brought me." The Lawyers are supposed to bring the case with the right law; that's not the job of the Court. It would be inefficient to have the Court forever browsing all the State law, all the Case law, all the local ordinances that might be involved before coming to a decision.

The Lawyers screwed this one up; not the Judge. The local agency might be able to do something about the violation of the Ordinance as it existed in 1979 but apparently they don't care because they issued a permit.

You’re kidding, right, Dave?!?!

You’re correct in stating that an appurtenant easement does not create a separate estate that can be bought and sold. That is exactly why being able to build a garage on a portion of an easement is completely contrary to previous thinking. The garage IS a saleable estate. The garage IS a structure which can be used in its normal fashion to exclude the fee title owner of the underlying parcel.

What your example has to do with the case at hand is not clear to me.

As far as the SMA and LLAs, have you perused §66412(d) recently?

While I agree that the attorneys often do NOT understand the real underlying issues when it comes to boundary cases, I disagree that this is an example of such a case.

Back to installing the friggin’ new dishwasher. Do the engineers who design these appliances ever try to install them in real kitchens?

I agree with Dave but I don't know what the lawyers could have done to change the outcome. If you're saying the Plaintiffs attorneys should have brought up zoning or other local agency ordinances, it seems building the garage did not violate these (whether in 1979 or now) given the City issued a building permit.

The dominant tenement should be assessed with the improvements he owns. I guess the assessor should tax the shared ownership.

When the owner of the easement sells his property (and all other rights running with the land) the new owner now "owns" the garage also. If the owner sells his property excepting this “garage” easement in order to keep his garage and parking easement, this could violate the SMA and render the exception void.

Ian, you said, “The garage IS a structure which can be used in its normal fashion to exclude the fee title owner of the underlying parcel.” What’s wrong with excluding the fee title owner from the underlying parcel? What’s the difference between a lease or an easement or an exception? They all could exclude the fee owner (who is the servient tenement).

I have another project where the ground water rights on the land were granted to the City. The document granted the specific rights of building and maintaining wells, pipes, etc in, on, under, through, the servient tenement’s property. The fee owner of the property now wants to develop his land but will first need to quitclaim the water rights or negotiate with the City for something more specific than this grant that encumbers all of his land otherwise he could be keeping the City from its right to pump water, build pipes, etc.

Ben

“What’s wrong with excluding the fee title owner from the underlying parcel? What’s the difference between a lease or an easement or an exception? They all could exclude the fee owner (who is the servient tenement).”

OK.

One of the most important rights of ownership of land is the ability to exclude others. This right is so fundamental that, at one time, if you were to commit a crime and could get back to your land without being caught, you could not be rousted fro your home.

Admittedly, this has not ever been the case in the US and “went out of fashion” in Great Britain about 350 years ago. However, it does illustrate the nature of land ownership.

Our trespass laws are based entirely on the concept that we, as fee owners, CAN exclude anyone we want, with the exceptions of those listed in §602 of the California Penal Code. I can stop my neighbor from walking across my lawn to the corner. I can stop the kid down the street from riding across my back yard. I can stop the guy across town from walking into my house and watching my TV. These are all examples of my right to exclude others from my land. These right, as well as the right to pass title to my land to my heirs or to sell my land were some of the rights fought for and sealed in the Magna Carta at Runnymede.

In order to achieve a level of harmony, I can trade away or even give away certain of the rights of ownership I have in my land. I can give you an easement to cross a specific portion of my land to get to a road. I can give an easement to the power company to run power lines across a portion of my land. I can dedicate a portion of my land as a public roadway. I can give a portion of the air above my land for a view easement or an avigation easement.

In each case, I allow others to use a portion of my land for a specific reason. I make a pact with those others that I will not exclude them from that portion of my land. In turn, they agree to use that portion of the land for the stated purpose and, at least until Blackmore, they agree to NOT exclude me from my own lands! Note that a non-exclusive easement or a dedication increases the population of those allowed to enter in to that portion of my land to include everyone on the planet but it does not give those people free run of my entire lands.

In the event that one or the other, the dominant or serviant parties, erects a fence or installs a gate, the keys or means of opening the gate must be shared with the other. This is an example of the fact that neither the dominant or serviant party can be excluded from the easement.

A lease is an agreement that I will allow you to use a portion of my lands as your own to a degree. The lease also documents the type of entry I can make into my own land during the course of the lease and the notice I must give to enter that land. If you look at most leases, you will find that the landlord (quaint term from ancient times when land owners WERE Lords – which should give you an idea of the nature of land ownership and the extent of the history behind it) CAN enter the leasehold immediately under certain circumstances and after a period of notice under most others. You, as the leasee, cannot prevent me from entering onto my own property as you could if you owned the property in fee.

There is a further case of the type of lease in which YOU own the land and I own the building on the land, leasing the land from you. The Courts have long held that such a lease must have a time frame that is reasonable. In other words, if our lease in this arrangement is for 99 years, the courts have held that this is tantamount to ownership because I could not reasonably be expected to be alive in 99 years. There would need to be some provision for me passing my rights to others, which would create an hereditament, which is a function of fee ownership, not leasehold. Even in this case, you, as fee owner, have right of entry, even though it may be after a short period of notice.

Now take Blackmore.

The fact that the local agency granted a permit to build has absolutely no bearing on this case. Local agencies often make mistakes in issuing permits. As an example, take the case of a parcel created AFTER March 4, 1972. The local jurisdiction has the right to demand that the land owner seek a Certificate of Compliance or Conditional Certificate of Compliance, except in the case where a permit to develop has already been issued. I don’t know about your practice, but this comes up frequently in mine.

The garage is built on another person’s lands. The very definition of the garage is that it is used to store something – usually a vehicle – and exclude others from access to that something. By the nature of excluding the fee title owner, this garage has taken on, at least until Blakcmore, the robes of OWNERSHIP.

These concepts are so deeply held and have been for hundreds of years that, until Blakcmore, I can not find a single example wherein the exclusion of a fee owner was upheld by the Court.

It would be interesting to know the mechanism of financing the construction of the garage in Blackmore. I cannot imagine any lender putting up funds for a garage being built on an easement. The means of ceasing the property in the event of a foreclosure would be rather difficult, I suspect.

Interestingly, that also opens up the question as to whether the garage could be sold separately from the main house of the dominant estate. If it could, that is another right that appears to be that of a fee owner rather than an easement holder. Ownership can be sold, easement rights usually cannot.

Finally, the concepts of zoning and local ordinances are very germane to this discussion. If the garage had been proposed to be built on the property line, local setbacks would have prevented the permit from being issued. If I build my house too close to the sideline of my property, an easement will NOT likely suffice to correct the error; a Lot Line Adjustment or variance would still be needed.

Blackmore v Powell is a radical departure from previous judicial thinking. It will be rather interesting to see how this plays out.

Thanks for the clarification. I've said it before but I want to say it again, that the wealth of knowledge and experience on the forum and from people like you Ian, is incredible and this is what makes the forum so fun!

Ben

I have not yet read the case. (I hope to later today). But, Ben brought up the point of leases which I thought of the other day but did not post as I hadn't fully worked it through in my mind.

Telecom companies regularly lease areas to place transmission facilities on properties and then fence them in and exclude everyone else, including the underlying fee owner. I don't recall, there may be a specific exclusion for this in the SMA. I have seen easements for other utilities that are fenced and exclude all others, including the fee owner. So such an exclusive easement does not seem to be totally without precedent.

It does seem odd that for a structure of a permanent nature, like a garage, that some other principle would not be primary. But does this amount to a prescriptive easement wherein if the garage is ever removed the easement is automatically extinguished?

If that is the case, maybe the court was trying to avoid what it saw as an unfair burden on the garage owner without permanently separating the fee owner from the potential of one day recovering the underlying land.

Perhaps that question is answered in the case report. If so, I'll find it there.

In statute law in California, there are provisions that treat deeds the same as a contract. So when a court looks at a deed some of what they do is decide wheter or not the deed is a valid contract or not. If party A enters into an agreement with party B and the court determines the agreement is a valid contract, then A is required to perform to the terms of the agreement or be liable for damages suffered by B.

So in the case of the easement, A agrees to give B the right to park on and build a garage within the "easement" as defined by the terms of their agreement. So far, no problem, this is a valid contract.

A transfers ownership of A's interest to C and B transfers B's ownship of B's interest to D.

The new owners interests are subject to the previous agreement. The issue can never be related to the character of the easement. The easement is a valid easement. Even though the land is being used exclusively by B to the exclusion of A (or subsequently D's exclusive use excluding C) and all others. D still does not own the underlying fee and therefore cannot sell it because it was never granted to D. The situation is very similar to a lot that fronts onto a public right of way that was granted as an easement. The owner of the lot is excluded from all uses of the strip of land within the road way easement except to drive over it, basically.

Neither adverse posession nor perscription can apply in this case because there is a valid agreement in place.
Having said all of this, a local agency may not be precluded from preventing construction that does not comply with its local standards.

I agree with you Dane. I also thought it was interesting that the court mentions the garage takes up 11% of the total land area of the easement. Maybe they were trying to say that the fee owner owns rights just as the easement holder has rights and that building a garage on 100% of the easement would not be “fair” (this is where I agree with Ian). The courts typically will rule in equity within the bounds of the law.

The courts also made it clear that the owner of the easement retains “every incident of ownership not inconsistent with the easement and the enjoyment of the same.”

“Whether a particular use by the servient owner of land subject to an easement is an unreasonable interference with the rights of the dominant owner is a question of fact for the trier of fact.”

“The trial court concluded that the dominant tenement was entitled to exclusive use of the garage as ‘a necessary incident’ of the easement, reasoning that a shared garage would generate disputes about allocation of parking spaces, security, and maintenance costs.”