By William W. Abbott
When does an easement cross over and become a “division of land” for purposes of the Subdivision Map Act? Apparently, not as frequently as suggested by the California Attorney General and noted California authority.
In Blackmore v. Powell (2007) 150 Cal.App.4th 1593, the Second Appellate District ruled on the validity of an easement granted between adjacent owners, which provided the grantee with the right to an exclusive easement for ingress and egress as well as the right to construct a garage within the easement area. In Blackmore, a property owner (grantor) granted an exclusive easement to an adjacent owner (grantee). The scope of the easement was for driveway purposes, including the right to build a garage within the easement area. Title to both the benefited and burdened parcels passed to subsequent owners, who then initiated the dispute over the nature and scope of the easement, as it related to the ability to construct and exclusively occupy a garage.
The trial court ruled for the holder of the easement, the terms of which included the right to build and occupy a garage. The appellate court concurred, addressing two issues: was the grant of the right to build an exclusive use garage inconsistent with the nature of an easement, and did the grant violate the Subdivision Map Act? Turning first to the easement, the appellate court noted that the holder of an easement possessed only a restricted right of use, as it was less then the conveyance of a full fee. Therefore, a document labeled an easement would not normally be construed as if it conveyed a fee. While the creation of a exclusive use easement was unusual, it was not completely unheard of. (See Pasadena v. California-Michigan Land and Water Company (1941) 17 Cal.2d 576.) The court concluded that the exclusive garage use was minor in extent, and was in furtherance of the use of the easement for driveway purposes. While the court recognized that exclusive occupancy of an easement had been rejected in other cases, the court found a basis of distinction in that the other cases did not involve written easements, but rather claims based upon prescriptive easement. In other words, the parties were entitled to what they bargained for in the written document.
Of greater interest was the court's take on whether or not the creation of the exclusive occupancy in the garage area violated the Subdivision Map Act. Exclusive occupancy has been identified by both the Attorney General's office and noted authors, Curtin & Merritt, Subdivision Map Act Manual, (2003) Solano Press Books, as a possible benchmark for recognizing a land division. Apparently, none of the parties argued that the original grantor violated the Map Act. Rather, the argument was made that the trial court's interpretation of the easement rights resulted in a violation of the Map Act, an argument rejected by the appellate court. From the court's perspective, the easement was not a division as it only created a right of use, and did not transfer any ownership interest. The court appeared to be influenced by the fact that use of the garage area was relatively minor when viewed in the context of the entire easement area. The court recognized that there was the potential to violate the Map Act by creating "developable interests" through the use of exclusive easements. On these facts however, the court apparently viewed the exclusive use area as being too minor in character to warrant treatment as a land division.
Comment: Everyone is familiar with the saying that starts; “If it walks like a duck . . . .” It strikes this author that the exclusive use of the garage area was still a duck regardless of how it was dressed up. The court’s holding is problematic for local governments. It creates an incentive for individuals unwilling to subject themselves to Map Act procedures to solve their problems through exclusive use easements, a clear step backwards in terms of the evolution of the Subdivision Map Act.
Bill Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.