By Glen C. Hansen
In Main Street Plaza v. Cartwright & Main, LLC (2011) ___ Cal.App.4th ___, 2011 Cal.App. LEXIS 499, the Fourth Appellate District held that a defendant property owner was not entitled to a summary judgment on the plaintiffs’ claim of a prescriptive easement over an alleyway on defendant’s property, where the plaintiffs did not pay taxes on a separately assessed railway easement that ran along the same land as the alleyway, and where the railway easement and the prescriptive easement were not coextensive in use.
In Main Street Plaza, the plaintiffs were owners of a retail center and food court who sought a prescriptive easement for parking and access by their tenants’ customers, employees, suppliers and invitees over an alleyway. The 25-foot-wide alleyway was behind the plaintiffs’ property and on the adjoining properties of defendants. Plaintiffs claimed that for 13 years its tenants and their employees and invitees used the alleyway for parking, making deliveries, and turning their vehicles around. A 12-and-one-half-foot railway easement ran along the same land as the alleyway. Property taxes were assessed on the railway easement, and the holder of the railway easement—not plaintiffs—paid those taxes. One of the defendant owners of adjoining property subject to the plaintiffs’ claim of prescriptive easement moved for summary judgment and adjudication of plaintiffs’ causes of action for a prescriptive easement. The motion was based on three grounds: (1) plaintiffs could not prove a required element for a prescriptive easement—that plaintiffs had paid the taxes due on the separately assessed railway easement; (2) a prescriptive easement could not run against the reversionary fee interest in the defendant’s parcel while the parcel was leased to a third party; and (3) plaintiffs’ claimed prescriptive easement violated the conditional use permit for the plaintiff’s parcel and local laws and ordinances, and therefore could not arise under the theory that an easement cannot be acquired for an illegal purpose. The trial court granted the motion for summary judgment on the first ground, and did not address the second or third ground in its written decision. The Court of Appeal reversed.
The Court of Appeal addressed the substantive issue of how the failure to pay taxes on the easement could, in some cases; result in a denial of a prescriptive easement. The court also addressed the procedural issue of what a trial court must discuss in its decision when it grants a motion for summary judgment or adjudication.
On a substantive level, the Court of Appeal discussed how a claimant who fails to pay taxes on a separately assessed easement can be denied an order establishing a prescriptive easement. To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. (See Glen C. Hansen, “‘The Court Let Me Keep My Fence On Your Land’: Neighborhood Boundary Encroachments And Exclusive Easements," California Real Property Journal, Vol. 29, Issue 1 (May 2011).) A prescriptive easement normally does not require payment of taxes. Someone claiming a prescriptive easement must show payment of taxes only in the rare instance that the easement has been separately assessed. (The party contesting the prescriptive easement bears the burden on that issue.)
In the Main Street Plaza case, there was no argument that the prescriptive easement, itself, was separately assessed. Instead, the undisputed evidence was that a portion of the property over which plaintiffs claimed the prescriptive easement was separately assessed for tax purposes as a railway easement, and that plaintiffs did not pay those taxes. However, the Court of Appeal found that the payment of assessed taxes on the railway easement was “irrelevant” to the question of whether there was a prescriptive easement over defendant’s portions of the alleyway. That was because the railway easement and the prescriptive easement were not “coextensive in use.” Plaintiffs’ claimed uses of the alleyway for deliveries, turning vehicles around, and parking were not inconsistent with the use of the railway easement for “railroad purposes,” especially in light of the undisputed fact that the holder of the railway easement was not actively using that easement during the period in which the prescriptive easement arose. Thus, the Main Street Plaza case stands for the proposition that payment of taxes is relevant to the creation of a prescriptive easement only where either (1) the prescriptive easement, itself, has been separately assessed; or (2) where another easement over the same location as the prescriptive easement has been separately assessed, and the two easements are “coextensive in use.”
As to the procedural issue, the Court of Appeal discussed the requirement in Code of Civil Procedure section 437c, subdivision (g), regarding the written documentation that is required from a trial court that grants a motion for summary judgment or adjudication. That subdivision provides that the trial court “shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination.” In this case, the Court of Appeal refused to grant the defendant’s motion for summary judgment on the second and third grounds raised in that motion, outlined above. Here, the trial court’s orders failed to comply with the written documentation requirement in section 437c, subdivision (g), because it was silent as to those two additional grounds. Also, because those two grounds were either complex or the subject of conflicting evidence, the Court of Appeal refused to decide those grounds in its de novo review of the trial court’s order. Thus, the Main Street Plaza decision is a reminder that the detailed requirements of section 437c, subdivision (g), must be followed as part of a summary judgment motion. Moving counsel must be vigilant to make sure that all of the basis for the granting of a summary judgment or adjudication motion are presented in the trial court’s written order.
Glen C. Hansen is an attorney 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.