REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

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.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

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.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

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  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

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

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

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.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Court Of Appeal Holds That, While The California Constitution Does Not Guarantee A Right of Access To Martin's Beach, The Public May Have An Access Right Under The Theory Of Common Law Public Dedication.

By Glen Hansen

Friends Of Martin's Beach v. Martin's Beach 1, LLC (2016) 246 Cal.App.4th 1312

In a dispute between a plaintiff unincorporated association asserting public rights and defendant property owners over the use of a road, parking area and the inland dry sand of a popular beach that were owned by defendants, the Court of Appeal for the First Appellate District in Friends Of Martin’s Beach v. Martin’s Beach 1, LLC (2016) 246 Cal.App.4th 1312, 2016 Cal.App.LEXIS 341, held: (1) that the trial court properly granted summary adjudication as to plaintiff’s claim that Article X, section 4, of the California Constitution, confers on the public a right of access over private property to tidelands; and (2) that the trial court erred in granting summary adjudication as to plaintiff’s claim that, under the theory of common law dedication, the owner’s predecessors dedicated such access to the public through their words and acts, and that the public accepted that offer by using those parts of defendants’ property.

The Martin’s Beach case involved two parcels of land bounded on the east by Highway 1 and on the west by the Pacific Ocean (“Property”). At the western edge of the Property is a crescent-shaped strip of land known as “Martin’s Beach.” The only land access to Martin’s Beach is via a road that runs across the Property from Highway 1 to the beach. The Property was once part of a larger tract of land that was provisionally granted by the Mexican Governor of California in 1838 (“Rancho”).  The grant was not finalized by the time war broke out between Mexico and the United States in 1848. The Treaty of Guadalupe Hidalgo ended the war, and in 1851, Congress passed legislation to implement the Treaty. The 1851 Act established the process to address pre-war land claims.  Claims that were confirmed in those proceedings resulted in a federal patent, which is the equivalent of a deed from the federal government conveying fee simple ownership.  A patent claim for the Rancho was eventually confirmed in such patent proceedings, and by the United States Supreme Court on appeal.  Over time, the Rancho was divided into smaller parcels, including the Property, and conveyed to various persons. 

The Property was eventually acquired by the Deeney family.  The Complaint in this case alleged that, from the 1930s or earlier, the Deeney family invited the public to use the beach and the road to the beach both by words and conduct, specifically by posting a large billboard on the highway inviting the public to come to the beach by way of the road, by “welcom[ing] all ‘with open arms,’” and by constructing public toilets, a parking area and a convenience store catering to those who visited the beach.  For some of that time they charged a 25ȼ parking fee.  The Complaint also alleged: “Postcards from the ‘50s show hundreds of people enjoying idyllic days at a beach that at times had the feel of a Mediterranean escape.” “In more recent years, surfers, in particular, enjoyed what the website Surfpulse refers to as a ‘mystical and multi-faceted playground’ and what Save the Waves’ program director called ‘a natural theme park with sand.’”  The Deeney family sold the Property to defendants Martin’s Beach 1, LLC and Martin’s Beach 2, LLC (“Owners”) in 2008.  In 2009, the Owners locked a gate barring the entrance to the road, placed “No Trespassing” signs there and otherwise prevented the public from using the road or the beach.

Plaintiff Friends of Martin’s Beach, an unincorporated association (“Plaintiff”), filed a complaint against the Owners “on behalf of the general public,” citing numerous legal theories and causes of action in order to assert “nonexclusive rights and interests acquired by the general public in the beach to high tide at Martin’s Beach, the dry sand inland, an inland area historically used for parking and access along Martin’s Beach Road.”  In response to the parties’ cross-motions for summary adjudication, the trial court ruled in favor of Owners on all of the public access issues.  Plaintiff appealed.  The Court of Appeal affirmed in part, reversed in part, and remanded the case to the trial court on the public dedication claim. 

Plaintiff’s Constitutional Claims For Public Access

Plaintiff argued that Article X, section 4, which was adopted by the People as part of the Constitution of 1879, entitled the public to an easement to use the road across the Property for the purpose of gaining access to the tidelands.  That section 4 provides:

 

No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof. 

However, the Court of Appeal affirmed the trial court’s conclusion that, whatever public rights exist under section 4 (that issue was not decided), do not override the federal land patent title in the Owner in light of Summa Corp. ex rel. Lands Commission v. California (1984) 466 U.S. 198.   In Summa, the U.S. Supreme Court held that the State of California acquired no public trust interest in lands to which title was confirmed under the federal Act of 1851 patent process based on a Mexican land grant, unless such interest was asserted by the State in the patent proceedings.  Here, Plaintiff's cause of action based on section 4 was barred under Summa because California did not acquire a public interest in the Property.  That was so because the State did not assert any such interest during the patent proceedings for the Rancho in the 1850s.  In response to Plaintiff’s attempts to distinguish Summa, the Court further held (1) that the provisional nature of the Mexican land grant for the Rancho did not alter the conclusive application of Summa; (2) that section 4 is, at least in part, a codification of the public trust doctrine; and (3) that section 4 is not a mere regulation of an “incident of ownership.”  Thus, Plaintiff’s constitutional claim based on section 4 was barred under Summa.  The Court also explicitly rejected Plaintiff’s alternative argument that section 4 is retroactive and burdens lands held in private ownership before its enactment. Not surprisingly, counsel for the owner called the Court of Appeal’s ruling on the section 4 claim, which ruling rejected the idea of a guaranteed right of beach access under the California Constitution, “a win for our client and for all coastal property owners.”

Plaintiff’s Common Law Dedication Claim For Public Access

The Court of Appeal held that the trial court erred in granting summary adjudication as to Plaintiff’s common law dedication claim.  A common law dedication is a “grant and a gift” of land or an interest in land to the public for a public use.  A claim for dedication has two elements: “intention to dedicate by the owner, and acceptance by the public.” To constitute a dedication at common law no particular formality of either word or act is required. All that is necessary is sufficient evidence that the property owner either expressly or impliedly manifested an unequivocal intention to offer the property for a public purpose and that there was an acceptance of the offer by the public. Such intent may be demonstrated in any conceivable way that a person’s intention can be shown.  Similarly, the acceptance element may be formal, as by resolution or ordinance, or by use.  Here, the Court rejected the Owner’s singular focus on the “express” dedication label that was used in Plaintiff’s Complaint. The elements are the same for either an implied or an express dedication; the only difference is in the mode of proof of the intent element. Contrary to the Owners’ argument, the “intent to dedicate” element in an express dedication may be established by words or overt conduct of an owner other than a grant deed to a public agency or similar formal writing.  Also contrary to the Owners’ argument, an express dedication does not need to be accepted in a formal way or by a public entity. Here, the Court of Appeal held that “there can be little doubt that the facts [Plaintiff] alleged are sufficient to establish the elements of common law dedication, if they can be proven at trial. The complaint alleged a number of acts on the part of the owners that could manifest an intent to dedicate to the public, coupled with public use over many decades that could establish acceptance.” 

Furthermore, it was error for the trial court to conclude, as a matter of law, that the fact that the Deeneys “at some point charged a fee” to the public negated any intent to dedicate.  Evidence of such permissive use may tend to show the owner intended to control or qualify other parties’ access to the property and thereby rebut a finding of dedicative intent.  But that was a triable issue of fact.  Also, the Court held that the trial court erred when it inferred that the Deeneys’ commercial purpose for inviting the public to use the road and beach negated the intent to dedicate the road or beach, as a matter of law.  In fact, such commercial purpose may support a finding of intent to dedicate.

Accordingly, the Court held that Plaintiff alleged facts sufficient to state a common law dedication claim, and the Owners failed to show, as a matter of law, that they are entitled to judgment on this cause of action. The Court remanded the case to the trial court to adjudicate Plaintiff’s common law public dedication claim.  After the Court of Appeal opinion was issued, counsel for Plaintiff stated the ruling “gave us a road map to how to win at trial.”  However, that remains to be seen in this very public lawsuit.

Glen Hansen is a Senior Counsel 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, or 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.

 

Seminar on Boundary Disputes, Adverse Possession, Easements and Conflicting Surveys

Glen Hansen will be speaking at the “Boundaries and Easements” seminar on March 10, 2016, in Sacramento, California, hosted by HalfMoon Education Inc.  For more information, please click here to view the brochure.

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Court of Appeal Disagrees With Other Courts And Holds That California Civil Code Section 1009 Bars All Use Of Private Real Property From Developing Into An Implied Public Dedication, Not Just Recreational Use.

By Glen C. Hansen

In Scher v. Burke (2015) 240 Cal.App.4th 381, the Court of Appeal for the Second Appellate District held, in the published portion of the decision: (1) that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the March 4, 1972 effective date of that statute; and (2) that evidence about the use of a road on private property after that date cannot support a finding that the road was impliedly dedicated to public use prior to that date. (In the unpublished portion of the decision, the Court of Appeal examined extensive historical evidence and affirmed the trial court’s judgment that Plaintiffs had not established their right to an express, prescriptive, or equitable easement for access across Defendants' properties. A copy of the entire Court of Appeal decision can be found here.)

Continue Reading...

SAVE THE DATE! Abbott & Kindermann's 2nd Annual Update on Easement Law and Boundary Disputes

Glen C. Hansen of Abbott & Kindermann, LLP, will present the 2nd annual update on recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Determining the Scope of an Easement
  • Interfering with Easement Rights
  • Locating and Maintaining Boundary Dividers
  • Using Historical Evidence in Boundary Disputes
  • Resolving Conflicting Surveys

MCLE and American Planning Association continuing education credits offered.

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP, and a long-time practitioner in real estate and land use law.

Cost $85.00 

Location and Time

Roseville – October 23, 2015, 8:00 a.m.-11:45 a.m.  (To Register for the Roseville Location Click Here)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

 

Tags:

An Equitable Easement To Keep Your Patio Furniture On Your Neighbor's Property?

By Glen Hansen

In Shoen v. Zacarias (2015) 237 Cal.App.4th 16, the Court of Appeal for the Second Appellate District held that the hardship that a trespasser would have in removing her portable patio furniture from a neighbor’s property would not be “greatly disproportionate” to the hardship on the neighbor in losing the trespassed-upon portion of that neighbor’s property occupied by the furniture, and so the trespasser was not entitled to an equitable easement to maintain that furniture on the neighbor’s property.

Continue Reading...
Tags:

Accepting Roadway Dedications On Behalf Of The Public As Compared To Accepting Roads Into The Publically Maintained Road System. Words Matter.

By William W. Abbott

Coppinger v. Rawlins (August 14, 2015, E060664) ___ Cal.App.4th ___.

County acceptance of a roadway dedication on a map does not assure acceptance of the roadway into the County maintained highway system.

In 1980, Robinson filed a parcel map, creating two numbered lots and 3 lettered lots: A, B and C. By certificate on the map, the County accepted the dedication offer on Lot A into the County maintained road system, and accepted Lots B and C on behalf of the public, but not into the County maintained system, specifying that acceptance would require a separate resolution by the Board of Supervisors.

Continue Reading...

SAVE THE DATE! Abbott & Kindermann's 2nd Annual Update on Easement Law and Boundary Disputes

Glen C. Hansen of Abbott & Kindermann, LLP, will present the 2nd annual update on recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Determining the Scope of an Easement
  • Interfering with Easement Rights
  • Locating and Maintaining Boundary Dividers
  • Using Historical Evidence in Boundary Disputes
  • Resolving Conflicting Surveys

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP, and a long-time practitioner in real estate and land use law.

Cost $85.00 

Locations and Times

Roseville – October 23, 2015, 8:00 a.m.-11:45 a.m.  (To Register for the Roseville Location Click Here)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

 

Tags:

SAVE THE DATE - Abbott & Kindermann's 2nd Annual Update on Easement Law and Boundary Disputes

Glen C. Hansen of Abbott & Kindermann, LLP, will present the 2nd annual update on recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Determining the Scope of an Easement
  • Interfering with Easement Rights
  • Locating and Maintaining Boundary Dividers
  • Using Historical Evidence in Boundary Disputes
  • Resolving Conflicting Surveys

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP, and a long-time practitioner in real estate and land use law.

Cost $85.00 

Locations and Times

Fairfield – August 14, 2015, 8:00 a.m.-11:45 a.m. (To Register for the Fairfield Location Click Here)

Hilton Garden Inn – Fairfield, 2200 Gateway Court, Fairfield, CA 94533

Roseville – October 23, 2015, 8:00 a.m.-11:45 a.m.  (To Register for the Roseville Location Click Here)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

 

SAVE THE DATE - Abbott & Kindermann's 2nd Annual Update on Easement Law and Boundary Disputes

Glen C. Hansen of Abbott & Kindermann, LLP, will present the 2nd annual update on recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three-hour class examines recent case law about:

  • Creating and Terminating Easements
  • Accommodating Neighbors vs. Creating Prescriptive Easements
  • Determining the Scope of an Easement
  • Interfering with Easement Rights
  • Locating and Maintaining Boundary Dividers
  • Using Historical Evidence in Boundary Disputes
  • Resolving Conflicting Surveys

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP, and a long-time practitioner in real estate and land use law.

Cost $85.00 

Locations and Times

Fairfield – August 14, 2015, 8:00 a.m.-11:45 a.m. (To Register for the Fairfield Location Click Here)

Hilton Garden Inn – Fairfield, 2200 Gateway Court, Fairfield, CA 94533

Roseville – October 23, 2015, 8:00 a.m.-11:45 a.m.  (To Register for the Roseville Location Click Here)

Holiday Inn Express – Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

Registration:   8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

 

 

Statutory Prohibition Against Acquiring Public Recreation Easements By Prescription Does Not Apply Where The Easement Is Used By Private Persons To Access Their Own Property That They Use For Recreational Purposes

By Glen C. Hansen


In Pulido v. Pereira (2015) 234 Cal.App.4th 1246, the Court of Appeal for the Third Appellate District held that the prohibition for a public recreational easement on private property in Civil Code section 1009 did not preclude property owners from acquiring a prescriptive easement over a road on a neighbor’s property that they used to access their own land for private recreational purposes, where such owners were not engaging in any recreation on the neighbor's property or passing through it to access a public recreational area.

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The Doctrine of Irrevocable Licenses is Alive and Flourishing - So Maybe You Can Maintain Your Plants on Your Neighbor's Property

By Glen C. Hansen

Richardson v. Franc (January 27, 2015, A137815) ___ Cal.App.4th ___.

In Richardson v. Franc, the Court of Appeal for the First Appellate District affirmed a trial court’s granting of an irrevocable license in perpetuity to maintain and improve landscaping, irrigation, and lighting within the area of an express easement for access and public utility purposes where, over a 20-year period, the current easement holders and their predecessors-in-interest installed and maintained those improvements at significant cost without any objection from the servient landowners or their predecessors‑in‑interest.

In 1989, Karen and Tom Poksay began building their home on the undeveloped property at 2513 Laguna Vista Drive in Novato, California. The project included constructing and landscaping a 150-foot long driveway within the 30-foot wide easement running down to the site of their new home, which was hidden from the street. The driveway was constructed pursuant to an easement over 2515 Laguna Vista Drive, which was then owned by Dan and Jeanne Schaefer. The easement was for access and utility purposes only. The landscaping was designed to be “natural and beautiful on both sides to be a nice entrance to the home.” Plants and trees were planted along both sides of the driveway in the easement area, along with a complex drip irrigation system. Water fixtures were also installed along the driveway for fire safety, along with electrical lighting along the driveway (later replaced by solar lighting). Through their own and hired labor, the Poksays maintained the landscaping, irrigation and electrical systems, and incurred costs in doing so.

James Scott Richardson and Lisa Donetti (“Respondents”) purchased the Poksay property in late 2000. Over the years, Respondents added new vegetation in the easement area, hired landscapers to maintain it, and incurred costs to irrigate it.

Appellants purchased 2515 Laguna Vista Drive in 2004, knowing that Respondents were improving the landscaping in the easement area, including employing landscapers. For six years, Appellants and Respondents lived in relative harmony, with no indication by Appellants that they wished Respondents to stop maintaining and improving the easement landscaping. In 2010 Appellants raised the first-ever objections about the landscaping and other improvements. In September 2010, one of the Appellants cut the irrigation and electrical lines on both sides of the driveway and disassembled the water valve pumps. Appellants also sent a letter through counsel demanding that Respondents remove all the landscaping and supporting systems from the easement area within five days. In response, Respondents filed an action that alleged claims for an irrevocable parol license, an equitable easement, and declaratory and injunctive relief. The trial court denied relief on the equitable easement cause of action, and granted an irrevocable license for Respondents “and their successors-in-interest to maintain and improve landscaping, irrigation, and lighting within the 30’ wide and 150’ long easement.” Appellants appealed. Under an abuse of discretion standard, the Court of Appeal for the First Appellate District affirmed the trial court’s equitable judgment.

The court of appeal initially held that Respondents’ claim for an equitable easement to maintain the improvements in the easement area was properly rejected. The doctrine of equitable easements is frequently invoked in order to maintain structures on neighboring property in circumstances where prescriptive easements and adverse possession claims would not apply. A claim for an equitable easement includes the requirement that the easement was created without knowledge or means of knowledge of the facts. Here, the trial court found that Respondents

knew or should have known at the time of their purchase that the Grant Deed, on its face, describes the easement for ‘access and utility purposes.’ The plants and irrigation system that [Respondents] seek to maintain for the landscaping do not fall under the easement description. Nor is this a case where [Respondents] believed that these items were on their property and did not realize they were, in fact, on [Appellants’] property.

Thus, an equitable easement could not be granted under the circumstances in this case.

However, the court of appeal held that the trial court did not abuse its discretion in granting Respondents’ request for an irrevocable license. “[A] license may become irrevocable when a landowner knowingly permits another to repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the continuation of the license, has expended time and a substantial amount of money on improvements with the licensor’s knowledge.”

In this case, the trial court concluded that the following evidence at trial was sufficient under law and equity to support a finding of an irrevocable license: The Respondents’ “substantial expenditures in the easement area for landscaping, maintenance, care, and physical labor”; the Poksays’ expenditure of “substantial sums in the easement area for landscaping, maintenance, care, and physical labor”; and “no objection … to any of this” by either Appellants or Mr. Schaefer over the course of more than 20 years. The court of appeal not only affirmed that ruling, but also rejected Appellants’ five other arguments against that ruling.

First, the court held that permission sufficient to establish a license can be implied from the acts of the parties.

Second, the court held that the Respondents’ failure to submit a specific dollar amount as to the cost of these improvements is irrelevant, because there was sufficient evidence to infer that the costs incurred in both money and time in maintaining the landscaping and other improvements were substantial.

Third, the appellate court held that the trial court did not abuse its discretion in concluding it would be inequitable to require respondents to remove these improvements when the property is transferred, given the substantial investment in time and money and the permanent nature of these improvements.

Fourth, the court recognized that providing a level of certainty to the parties by defining the scope of the irrevocable license with the precise arithmetic measurements of the easement area will prevent the parties from returning to court for further clarification as to the scope of the irrevocable license.

Fifth, Respondents’ knowledge that the landscaping and other improvements were not covered by the express terms of the easement was irrelevant to the granting of an irrevocable license.

Comment: The Richardson case reminds parties who have constructed and/or maintained structures on a neighbor’s property for a long time that they may have another legal theory by which to avoid the removal of those structures, along with the potential doctrines of equitable easements, prescriptive easements and adverse possession.

Glen C. Hansen is senior counsel 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, or 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.

 

 

 

 

REMINDER - NEW CLASS - Update on Easement Law and Boundary Disputes

Join Glen C. Hansen of Abbott & Kindermann, LLP, in a new class which discusses recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three‑hour class interprets and applies:

  • Easement Creation and Termination
  • Determining the Scope of an Easement
  • Locating and Maintaining Boundary Dividers
  • Resolving Conflicting Surveys
  • Recently Enacted and Pending Legislation

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Glen C. Hansen is a Senior Counsel at Abbott & Kindermann, LLP, and a long-time practitioner in real estate and land use law.

Cost $85.00

Locations and Times

Roseville – October 17, 2014, 8:00 a.m.-12:00 p.m. (To Register for the Roseville Location Click Here)

Holiday Inn Express & Suites - Roseville, 1398 East Roseville Parkway, Roseville, CA 95661

916-774-6060

Fairfield – October 24, 2014, 8:00 a.m.-12:00 p.m. (To Register for the Fairfield Location Click Here)

Hilton Garden Inn – Fairfield, 2200 Gateway Court, Fairfield, CA 94533

707-399-2441

Sign in:           8:00 a.m.

Class:              8:30 a.m. – 11:45 a.m.

Break:             10:00 a.m. – 10:15 a.m.

REMINDER - NEW CLASS - Update on Easement Law and Boundary Disputes

Join Glen C. Hansen of Abbott & Kindermann, LLP, in a new class which discusses recent developments in resolving easement and boundary disputes in California. This is an advanced class aimed primarily at land surveyors, civil engineers, attorneys, and property owners. This intense, three‑hour class interprets and applies:

  • Easement Creation and Termination
  • Determining the Scope of an Easement
  • Locating and Maintaining Boundary Dividers
  • Resolving Conflicting Surveys
  • Recently Enacted and Pending Legislation
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Supreme Court Holds That U.S. Government Does Not Have A Reversionary Interest To Abandoned Railroad Right Of Ways Under 1875 Statute

By Glen Hansen 

In Brandt Trust v. United States, ___ U.S. ___, 134 S. Ct. 1257, 188 L.Ed.2d 272 (2014), the U.S. Supreme Court held that rights of way granted by the U.S. Government to railroads under the General Railroad Right-of-Way Act of 1875 constituted easements, and not reversionary interests held by the U.S. Government, such that when a right of way granted in 1908 under the 1875 Act was abandoned in 2004, the servient property for that right of way became unburdened by the easement and all property rights were then held by the patentee of the underlying land.

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Just Because The Easement Says "For Public Road Purposes" Does Not Mean It's A Public Right-Of-Way

By Glen Hansen

In Schmidt v. Bank of America (2014) 223 Cal.App.4th 1489, the Court of Appeal for the Fourth Appellate District held that a trial court erred in granting summary judgment against claims by a servient property owner that alleged that the dominant property owner went beyond the scope of the reserved private easement for ingress and egress when it graded the easement and installed subsurface infrastructure on the easement area for the benefit of the adjacent condominium project that was built on the dominant property.

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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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