California Surveyors Forums

What methods are there to extinguish easements?

Can a Parcel Map be used to extinguish easements? I have been told by a map examiner (and maps have been recorded based on this) that when a Parcel Map is recorded and any previous easements of record that restrict the property included within the perimeter of the subdivision are not shown on the map then they are extinguished.

I have also been told by a Real Estate consultant that he has seen Tract Maps in San Diego County that show the easements and then include a note and arrow stating that the easement is being extinguished (or language to that effect). Which method is correct? Does the SMA cover this?

Does anyone know any state code references on this? I am not trying to be an attorney on this but would like to know for my own edification.

Thanks in advance for your answers.

Ken Wilson

SMA section 66445 (j):

"Any public streets or public easements to be left in effect after the subdivision shall be adequately delineated on the map. The filing of the parcel shall constitute abandonment of all public streets and public easements not shown on the map, provided that a written notation of each abandonment is listed by reference to the recording data or other official record creating these public streets or public easements and certified to on the map by the clerk of the legislative body or the designee of the legislative body approving the map."

Yes Warren for public easements.
For private easements:
If there is a division of a parcel by a PM or FM and
an easement is located on said parcel and
said parcel is the servient tenement of said easement
and the dominant tenement is not a part of said parcel nor a part of the division,
then there is no way that easement is extinguished with the PM or FM.

If the servient tenement and dominant tenement rights are held by the same person, then it is already extinguished per CA Civil Code §811(1) below.

CALIFORNIA CIVIL CODE
DIVISION 2. PROPERTY
TITLE 5. MARKETABLE RECORD TITLE
PART 2. REAL OR IMMOVABLE PROPERTY
CHAPTER 7. ABANDONED EASEMENTS
811. A servitude is extinguished:
1. By the vesting of the right to the servitude and the right to the servient tenement in the same person;
2. By the destruction of the servient tenement;
3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or,
4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.

Black's Law Dictionary:
extinguish:
1. To bring to an end; to put an end to.
2. To terminate or cancel.
3. To put out or stifle.
extinguishment: The cessation or cancellation of some right or interest. For example, the extinguishment of a legacy occurs when the item bequeathed no longer exists or no longer belongs to the testator's estate.

I recently ran into a similar but opposite situation, where there was an access easement across Parcel "A" of a Parcel Map to a large Remainder of same.
The Remainder was then subdivided into 80 residential lots, people are living there now and getting access to their individual lots by the streets dedicated on the FM. The old access easement abuts the back of just one of those 80 lots. The old access easement still shows up on PTRs and the latest assessment map.
Now the owner of Parcel "A" wants to improve his parcel. The city will not give a permit to build in that easement! The City wants the owner to get the easement abandoned, which by the way is in Civil Code §§887, below.

CALIFORNIA CIVIL CODE
DIVISION 2. PROPERTY
DIVISION 2. PROPERTY [654 - 1422]
PART 2. REAL OR IMMOVABLE PROPERTY [[755.] - 945.5]
TITLE 5. MARKETABLE RECORD TITLE [880.020 - 887.090]
CHAPTER 7. Abandoned Easements [887.010 - 887.090]

887.010.
As used in this chapter, “easement” means a burden or servitude upon land, whether or not attached to other land as an incident or appurtenance, that allows the holder of the burden or servitude to do acts upon the land.

887.020.
This chapter does not apply to an easement that is part of a unified or reciprocal system for the mutual benefit of multiple parties.

887.030.
This chapter supplements and does not limit or otherwise affect the common law governing abandonment of an easement or any other procedure provided by statute or otherwise for clearing an abandoned easement from title to real property.

887.040.
(a) The owner of real property subject to an easement may bring an action to establish the abandonment of the easement and to clear record title of the easement.

(b) The action shall be brought in the superior court of the county in which the real property subject to the easement is located.

(c) The action shall be brought in the same manner and shall be subject to the same procedure as an action to quiet title pursuant to Chapter 4 (commencing with Section 760.010) of Title 10 of Part 2 of the Code of Civil Procedure, to the extent applicable.

887.050.
(a) For purposes of this chapter, an easement is abandoned if all of the following conditions are satisfied for a period of 20 years immediately preceding commencement of the action to establish abandonment of the easement:

(1) The easement is not used at any time.

(2) No separate property tax assessment is made of the easement or, if made, no taxes are paid on the assessment.

(3) No instrument creating, reserving, transferring, or otherwise evidencing the easement is recorded.

(b) This section applies notwithstanding any provision to the contrary in the instrument creating, reserving, transferring, or otherwise evidencing the easement or in another recorded document, unless the instrument or other document provides an earlier expiration date.

887.060.
(a) The owner of an easement may at any time record a notice of intent to preserve the easement.

(b) In lieu of the statement of the character of the interest claimed and the record location of the documents creating or evidencing the easement claimed, as otherwise required by paragraph (2) of subdivision (b) of Section 880.330, and in lieu of the legal description of the real property in which the interest is claimed, as otherwise required by paragraph (3) of subdivision (b) of Section 880.330, and notwithstanding the provisions of Section 880.340, or any other provision in this title, a notice of intent to preserve an easement may refer generally and without specificity to any or all easements claimed by the claimant in any real property situated in the county.

(c) An easement is not abandoned for purposes of this chapter if either of the following occurs:

(1) A notice of intent to preserve the easement is recorded within 20 years immediately preceding commencement of the action to establish the abandonment of the easement.

(2) A notice of intent to preserve the easement is recorded pursuant to Section 887.070 after commencement of the action to establish the abandonment of the easement and before judgment is entered in the action.

887.070.
In an action to establish the abandonment of an easement pursuant to this chapter, the court shall permit the owner of the easement to record a late notice of intent to preserve the easement as a condition of dismissal of the action, upon payment into court for the benefit of the owner of the real property the litigation expenses attributable to the easement or portion thereof as to which the notice is recorded. As used in this section, the term “litigation expenses” means recoverable costs and expenses reasonably and necessarily incurred in preparation for the action, including a reasonable attorney’s fee.

887.080.
An abandoned easement is unenforceable and is deemed to have expired. A court order establishing abandonment of an easement pursuant to this chapter is equivalent for all purposes to a conveyance of the easement to the owner of the real property.

887.090.
Subject to Sections 880.370 (grace period for recording notice) and 887.020, this chapter applies to all easements, whether executed or recorded before, on, or after January 1, 1986.

Warren and Scott thank you for your answers.

The situation in question is this. We are doing a two-lot lot line adjustment and will be filing a PM. Private easements exist on both parcels that benefit the opposing parcel. So we have a north parcel and south parcel. The County Road is along the south parcel's south property line. So the north parcel has an access easement across the south parcel along the east property line of the south parcel. However, there is no actual road there but instead the owner of the south parcel uses the parking lot of the south parcel to get to their land. So they likely have developed an easement there by prescription.

Also, the south parcel benefits from two easements across the north parcel. One is for parking and the other is for access to that parking area.

Our desire is to extinguish all easements. What is the method?

I have attached a map showing the existing conditions and the proposed property line. The owners wish to extinguish all easements. The north property already has access to their property from the north.

You can file the PM, and delineate the proposed easement locations for granting through separate document(s) by reference to the filed PM.
The currently existing easement(s) can then be quitclaimed.

Two quitclaim deeds: Party A quitclaims all rights, ... to Party B of easements described as follows (or by name / reference to recording document). Same going the other way. I've worked at industrial sites, and this is how the big boys do it all the time.

In my case mentioned above, with the dominant tenement subsequently being subdivided into 80 R1 lots, who would we need to sign the Quitclaim for the dominant tenement?
Whoever was the owner at the time of the subdivision?

The quitclaim can be signed by the current vested party. It likely will want to be done prior to the subdivision map being filed, since its purpose will have been made moot.

Warren,
The FM was recorded 15+ years ago.
R1 lots are occupied.
Do you think we have to get all 80+ R1 owners to sign?

This is what I told the City:

I feel that this is a case of creating a problem that doesn’t really exist because:
1) From examination of the plain evidence (the FM, PM, Assessor’s Map, & the deeds), this is a private easement that “by reason of changed conditions, long disuse, or laches appear to be no longer of practical use or value” [CA Gov’t. Code §66436(a)(3)(B), https://leginfo.legislature.ca.gov/face ... nNum=66436, this statute would allow a SMA map subdividing Parcel “A” to be filed without the signatures of the “record title interest” of this easement {the dominant tenement}].
2) This easement is probably not even enforceable, because it so overburdened (2 houses from when it was created to 80+ houses now), “By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise” [CA Civil Code §811-3, http://leginfo.legislature.ca.gov/faces ... ionNum=811].
3) This private easement is no longer wanted by either tenement of the easement [no citation, we know servient tenement doesn’t want it and we do not even know for sure who would be the dominant tenement, as that parcel no longer exists