By Glen Hansen
In Zanelli v. McGrath (2008) 166 Cal.App.4th 615, the Court of Appeal, First Appellate District clarified the circumstances under which easements may be extinguished under the doctrine of merger where the dominant and servient tenements are jointly owned by more than one person. As with most easement cases, the specific facts in Zanelli were critical to both the establishment and extinguishment of the easement in question.
In 1981, the owners of 60 and 66 Clarendon Avenue conveyed 66 Clarendon (the dominant tenement) to Mr. and Mrs. Soffer along with a written easement “for receiving light, air, and view” that explicitly stated the maximum roofline for any future structure on 60 Clarendon (the subservient tenement).
In 1992, Richard Sommer and Jeffrey Dunham purchased 66 Clarendon as joint tenants from the Soffers. The deed for that purchase referenced the 1981 view easement benefitting 66 Clarendon.
In 1994 Sommer and Dunham purchased 60 Clarendon form the original owner of both parcels. They each purchased an undivided 50 percent interest, as tenants in common, but Dunham held his interest as trustee for the Jeffrey S. Dunham Revocable Trust. The deed did not refer to a 1981 view easement.
In 1998 Dunham transferred his interest in 66 Clarendon to Sommer by a grant deed that did not include the specific description and limitations of the 1981 view easement.
In 2002, defendant Thomas McGrath entered into a vacant land purchase agreement to buy 60 Clarendon from Sommer and Dunham. A dispute arose between Sommer and McGrath as to whether the 1981 view easement had been extinguished by merger, and escrow ultimately closed without resolution of the dispute. Although the deed did not reference that easement, McGrath closed escrow knowing that the property was potentially burdened by that easement.
In 2003, plaintiff Gaetano Zanelli purchased 66 Clarendon from Sommer with a full knowledge of the dispute between Sommer and McGrath.
The trial court held that the 1981 view easement was extinguished under the doctrine of merger codified in Civil Code sections 805 and 811 when Sommer and Dunham owned both 66 Clarendon and 60 Clarendon. The trial court also denied Zanelli’s alternative request that the easement be enforced on equitable grounds, because it found that the equities favor McGrath. The court of appeal affirmed.
The court of appeal clarified three legal principles regarding the doctrine of merger.
First, the doctrine of merger applies when the ownership of the right to the dominant and servient tenements are united not only in the same person, but also in the same persons.
Second, although Sommer and Dunham held an undivided half interest in 60 Clarendon as tenants in common and an undivided half interest in 66 Clarendon as joint tenants, they together owned the entirety of the interests in both the dominant and servient tenements such that the doctrine of merger applied. They each acquired present possessory, fee simple absolute estates with respect to both properties. And no other person held either a fractional share of either property, or any future nonpossessory interests in either property. Nor did Dunham holding title to 60 Clarendon as trustee for his revocable inter vivos trust mean that he should not be deemed the owner of the property because California law recognizes that the settler has the equivalent of full ownership of property under this type of trust. Thus, the “unity of ownership” necessary for the doctrine of merger existed in this case.
Third, once extinguished, the 1981 view easement was not revived upon severance of the formerly dominant and servient parcels. The act of severance alone does not revive the extinguished easement. The easement was not newly created by an express stipulation in the conveyance by which the severance was made. And the circumstances were not appropriate for implication of a reservation of the servitude. An implied reservation of an easement may be inferred only when there is an obvious ongoing use that is reasonably necessary to the enjoyment of the land granted. Here, no such ongoing use was obvious because there were no structures at all on 60 Clarendon.
The Zanelli court concluded with a discussion of equities in applying the doctrine of merger in this case. The court reiterated that the merger doctrine applies only where it prevents an injustice and serves the interests of the person holding the two estates, in the absence of evidence of a contrary intent. The doctrine is not applied where it results in an injustice, injury, or prejudice to a third person. The court of appeal held that the trial court was within its discretion to decline Zanelli’s request for equitable enforcement of the 1981 easement because the trial court reasonably concluded that the equities weighed in favor of McGrath.
Glen Hansen is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.