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.

 

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 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.

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.

 

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

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

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.

 

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.

 

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.

 

 

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.

Continue Reading 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

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.