So Your Neighbor Wants To Build An Ornate Wall Between Your Adjoining Properties - In The Absence Of An Agreement, Who Pays?

By Glen Hansen

Your neighbor builds (or wants to build) an ornate wall between your two properties. Then your neighbor emails to you the invoice, and asks you to contribute one-half the cost of the edifice. Do you have to pay if the cost of the wall is excessive in your opinion? What if you can barely afford half the cost of a chain link fence, let alone THAT wall? Prior to January 1, 2014, the law was not too helpful in answering those questions.

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Court Strongly Reaffirms That No Prescriptive Easement Exists Where The Facts Demonstrate That The Use Of The Property Was By Permission

By Glen C. Hansen

In Windsor Pacific LLC v. Samwood Co. (January 30,2013, B233514) ___ Cal.App.4th ____, the Court of Appeal for the Second Appellate District held (1) that a prescriptive easement could not be established over two roads, where the facts in the case demonstrate that the party alleging the prescriptive use was equitably estopped from denying that its use of the roads was by permission; and (2) that a proceeding to interpret a written easement agreement in order to determine whether a party to the agreement is equitably estopped from claiming that its use of the subject property was permissive is an action to ‘enforce or interpret’ the agreement, for which an attorneys’ fees provision in the agreement applies, regardless of whether that interpretation was sought by the allegations of the complaint or by affirmative defenses in the answer.

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Court Holds That A Hunting Ban Is Unquestionably A Legitimate Aspect And Aim Of A Conservation Easement Granted To The Department Of Fish And Game

By Glen C. Hansen

In Wooster v. Department of Fish & Game (2012) 211Cal.App.4th 1020, 2012 Cal. App. LEXIS 1250, the Court of Appeal for the Third Appellate District, held that a conservation easement recorded over 30 years ago is not extinguished or rescinded because the California Department of Fish and Game (“Department”) failed to post no hunting and no trespassing signs on the property as required by the conservation easement; nor is the grant of hunting rights to the Department (which allowed the Department to prohibit all hunting in the easement area) inconsistent with the statutes governing conservation easements.

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An Express Easement Cannot Be Extinguished Merely Because A Court Thinks That The Holder No Longer Has Any Reasonable Need To Use The Easement

By Glen Hansen

The Court of Appeal for the Third Appellate District held in Cottonwood Duplexes, LLC v. Barlow(November 13, 2012, C069564) ___ Cal.App.4th ___, that a trial court may not order a partial extinguishment of an express easement based on a finding that the reasonable use requirements of the dominant tenement do not require the full size and scope of the original easement.

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In Legal War Between Brothers Over An Implied Easement For Well Water, The Court Mandates ... Sharing

By Glen C. Hansen

In Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, the Court of Appeal for the First Appellate District applied the doctrine of implied easements and held that the water from a well dug by a mother on one of her two parcels of neighboring property should be reasonably shared by her sons after the mother died and her sons took separate possession of the parcels.

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Court Recognizes That A Property Owner May Be Able To Wield A "Sword" To Establish A Right To Maintain An Encroachment On Neighboring Property.

By Glen C. Hansen

Previously, this author explored how, under the doctrine of “equitable easements” (also known as “relative hardship”), courts may refuse to grant an injunction to a property owner to remove from his or her property an encroachment that is created or maintained by a neighboring owner. (See Glen C. Hansen, “‘The Court Let Me Keep My Fence On Your Land’: Neighborhood Boundary Encroachments and Exclusive Easements,” 29 Calif. Real Property Journal 10 (May 2011).) “Establishing the necessity for an equitable easement requires the owner [who built and/or maintains the encroachment] to prove that (a) the owner is innocent; (b) the neighbors’ injury caused by the encroaching structure is less than irreparable; and (c) the owner’s cost in removing the structure is greatly disproportionate to the neighbor’s injury caused by the structure.” (Id. at p. 14.) With no reported case law on point, this author suggested that “there is no ‘sword’ that the [encroaching] owner can wield to establish the right to maintain the encroaching structure [on neighboring property].” (Ibid.) Indeed, the Court of Appeal for the Sixth Appellate District held in unreported decision: “[W]e observe that the doctrine of relative hardship has only been invoked as a shield to defend against an injunction requiring the removal of an unlawful encroachment.” (Cobb v. Gabriele (2007) 2007 Cal.App. Unpub. LEXIS 3448, at *44 (emphasis added).)

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Illegal Construction Of A Billboard Does Not Render Billboard Easement Unenforceable, Nor Does It Allow The Servient Owner To Block Visibility Of The Billboard

By Glen C. Hansen

In Hill v. San Jose Family Housing Partners (2011) __Cal.App.4th __, 2011 Cal. App. LEXIS 1101, the Court of Appeal for the Sixth Appellate District held (1) that a written easement for a billboard was enforceable, even if the billboard was constructed in an illegal manner; and (2) the servient owners’ development that unreasonably interfered with the visibility of the billboard could be grounds for lost profits damages owed to the owners of the billboard.

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Exclusive Prescriptive Easements "No"; Equitable Easements: "Maybe"

By Glen C. Hansen

Civil litigation involving boundary disputes often includes legal questions about whether one neighbor has the right to use the property of another neighbor for driveway, parking, landscaping or other purposes. While California courts may grant a prescriptive easement to a neighbor to use his or her neighbor’s property for a limited use, a prescriptive easement will not be granted for “exclusive” use of neighboring property. This article outlines the factors that courts consider when determining whether an intended use of neighboring property is “exclusive,” and therefore prohibited as a prescriptive easement.

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Reminder! Save the Date

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 21, 2010
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 12, 2010
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

 

Where Property Ownership Originates From a Federal Patent, the Rules for an Easement by Necessity are Different (and May be Practically Impossible to Meet)

By Glen C. Hansen

In Murphy v. Burch, 2009 Cal. LEXIS 3983 (April 27, 2009, No. S159489), the California Supreme Court held that the common law elements of strict necessity and common ownership are only part of the showing that is required to establish an easement by necessity, where the common ownership is traced to the federal government. In such a case, a claimant must also prove congressional intent to reserve an access right-of-way, and the inability of the government to condemn an access easement.

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Keep Your Hooves off My Easement! Exclusive Easement Prevents Servient Landowner from Using Driveway

By Cori Badgley and Nathan Jones

Easement disputes between neighboring property owners are easy fuel for lawsuits. Generally, an easement is a right to use another’s property, for a specific purpose. For the most part, easements are non-exclusive, meaning that so long as the underlying property owner does not interfere with the easement-holder’s right of use, he can continue to use the easement property. While this is the general rule, Gray v. McCormick (2008) 167 Cal.App.4th 1019 is an easement dispute case where the easement holder (“Gray”) claimed that the servient property owners (“McCormick”) had no right to use a connecting driveway that ran across their property because Gray held an exclusive easement over McCormick’s land.

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When Settling Easement Disputes, Don't Skimp on the Details

By Glen C. Hansen

The recent decision by the Court of Appeal, Second Appellate District, Division Three in Hines v. Lukes (2008) 167 Cal.App.4th 1174 describes how a judgment entered pursuant to a settlement agreement under Code of Civil Procedure section 664.6 must include all of the material terms of the settlement.

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Extinguishing Easements Through Merging Properties Under Common Ownership

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.

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Long-time Debate Over Presumptions in Prescriptive Easement Cases Settled by Second Appellate District

By Cori Badgley

In the area of prescriptive easements, courts and practitioners have been challenged by the issue of who has the burden to prove “adverse use.” “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and adverse to the land’s owner.” Some courts have held that by providing evidence that the use is open, notorious and continuous, a presumption arises that the use is also adverse, and therefore, the defendants, and not the plaintiffs, must prove that the use is not adverse. The Court of Appeal, Second Appellate District in Grant v. Ratliff (July 16, 2008) 2008 Cal.App.Lexis 1063, disagreed with these courts and held along with the other California courts that even if the plaintiff provides evidence of open, notorious and continuous use, the plaintiff still bears the burden of producing evidence to show that the use was adverse. The burden does not shift to the defendant.

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Old Maps, Re-Subdivision Maps, and Relocated Easements

By William W. Abbott

The Subdivision Map Act (“SMA”) contains a process for re-subdividing all or a part of an existing subdivision.  When that occurs, public easements shown on the prior map are extinguished unless incorporated into the new map. (Gov. Code, § 66499.20 ½.) This sounds like a simple enough concept, but in reality, there is nothing truly simple whenever the facts involve dirt, the SMA and easements.

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Open Hostility: Validating Prescriptive Easements

By William W. Abbott

The case of Brewer v. Murphy (Court of Appeal, Fifth Appellate District, Case No. F051700) involved three riparian owners and a dispute over a spring box and pipeline.  The riparian owners are listed here in order from the lower riparian to the upper riparian: Brewer, Hagg and Murphy/Klein. In 1979, Brewer acquired property in eastern Fresno County. The source of water was a spring box on property owned by Murphy/Klein’s predecessor, located roughly one mile away. When Murphy (and later Klein, who acquired a part interest from Murphy) took title, neither was actually aware of the spring box or pipeline.

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Conservation Easements and the Subdivision Map Act

By William W. Abbott

The California Attorney General was recently asked whether or not the grant of a conservation easement on a portion of a parcel constituted a “division” for purposes of the Subdivision Map Act. (Government Code, §§ 66410 et seq.) The AG concluded, as many surveyors, local officials and land use attorneys had already determined, that such a conveyance was in fact, not a subdivision. (California Attorney General Opinion 06-801, August 14, 2007.)

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Easements, Exclusive Occupancy and the Subdivision Map Act

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.

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The Difficulty in Establishing Estoppel Against A Public Agency

By Leslie Walker and Joel Ellinwood, AICP

Establishing estoppel against the government in land use matters requires additional findings not required against a private party. In Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, two Pebble Beach landowners found out exactly how difficult that task can be.

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