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.

As illustrated by the recent case of Christian v. Flora (June 30, 2008) 2008 Cal.App.Lexis 959, a determination of the existence of an easement may require a court to go beyond the face of the later recorded to map to examine the relevant deeds and CC&Rs. Christian involves a map originally recorded in 1977. This map included a number of non-exclusive road easements.  Of interest in this litigation is a depicted easement across parcels 8, 14 and 15, which provided access for parcels 28, 29 and 30 to Latrobe Road. The subdivider also recorded a set of CC&R’s which provide for the obligation of the lot owners to financially participate in road maintenance.

In 1979, the subdivider filed a new parcel map covering parcels 14 and 15. This map reconfigured the parcel lines.  The later map omitted any depiction of the easement shown on the 1977 maps described above. It did include a new non-exclusive road and utility easement which connected at one point to the easement, located along the boundaries of parcels 28, 29 and 30, reflected on the 1977 map. The owners of parcels 14 and 15 also quitclaimed to each other, their respective interests in the easement shown on the 1977 map (the same easement omitted on the 1979 map.) The subdivider sold parcel 30 in 1978, and this deed referred to the 1977 map. The subdivider then sold parcels 28 and 29 after the 1979 parcel map was recorded, but these deeds also referred to the 1977 map and made no mention of the 1979 amendment pertaining to parcels 14 and 15.

The first issue addressed by the appellate court was the effect of the 1979 map covering parcels 14 and 15, coupled with the exchange of quitclaim deeds. These actions constituted a re-subdivision under the SMA (formerly Gov. Code, § 66499 ¾; now § 66499 ½), and resulted in abandonment of streets and easements not shown on the new map.[1] The inquiry didn’t stop there however. Looking at the CC&Rs and other factors, the appellate court concluded that the easement depicted on the 1979 map operated as a relocation of the easement shown on the 1977 map, and this was the reasonable conclusion to be reached regarding the subdivider’s intent. The court concluded that the owners of 28, 29 and 30 could rely upon the subdivider’s representation of easement rights by virtue of the reference to the 1977 subdivision map as a form of estoppel as well.  Thus, the owners of 28, 29 and 30 could make use of the easement created on the 1979 even though their respective deeds referenced only the 1977 subdivision map.

The trial and appellate court faced the practical problem of surmising the original subdivider’s intent in the depiction of the easement on the 1979 re-subdivision map. Was it a relocation of an existing easement or a new easement with limited benefiting property? Given the facts at hand, the court’s conclusion regarding the subdivider’s intent 30 years earlier is reasonable.  What is clear is that a subdivider whose purpose is to terminate easements reflected on a recorded map has to go the extra mile when documenting a plan to terminate public and private easement rights reflected on a recorded subdivision map.

Bill Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

[1]   The SMA currently addresses only public easements and streets. In 1979, however, the SMA made no distinction between public and private easements and streets.