When Will an Implied Easement be Enforced in California?

The dispute over a residential driveway in Sierra Madre raised a significant question about the law of easements that was decided in an unanimus decision by the California Supreme Court in the recent decision in Romero v. Shih.

Under California law, the parties to a sale of real property may grant or reserve easements as part of the transaction. This may be done expressly, in a written instrument, or impliedly, based on clear evidence of the parties’ intent.

In this case, the trial court concluded that the parties to a 1986 division and sale of two adjacent residential properties intended to create an implied easement over an eight-foot-wide strip of land that belonged to one parcel, but that had been used as the driveway to the home on the neighboring parcel.

As a consequence, the current owners of the neighboring parcel could continue to use that strip of land as a driveway.

The Court of Appeal reversed concluding that regardless of what the parties to the 1986 sale might have intended, the law prohibits a court from recognizing an implied easement that precludes the property owners from making all or most practical uses of the easement area.

Because recognizing the neighbors’ nonpossessory right to use the land as a driveway would effectively prevent the property owners from using the land for their own purposes, the Court of Appeal concluded that the easement could have been created only in a written instrument and not by implication.

The Supreme Court took this case to decide whether the law imposes such a limitation on the recognition of implied easements.

It concluded that it does not. The evidentiary standard for recognizing an implied easement is a high one, and that standard will naturally be more difficult to meet where, as here, the nature of the easement effectively precludes the property owners from making most practical uses of the easement area.

But if there is clear evidence that the parties to the 1986 sale intended for the neighboring parcel’s preexisting use of the area to continue after separation of title, the law obligates courts to give effect to that intent.

The Supreme Court reversed and remanded for the Court of Appeal to consider whether substantial evidence supports the trial court’s finding that an implied easement existed under the circumstances of the case.

In the early 1940’s, Edwin and Ann Cutler (the Cutlers) purchased adjacent parcels of property on West Alegria Avenue in Sierra Madre.

Soon after, the Cutlers built a home on the parcel lying to the east, at 643 West Alegria Avenue (the 643 Property). In the years that followed, the Cutlers built a brick garden planter in the front left corner of the yard and next to it, a driveway running along the western edge of the property for its entire length.

The planter and driveway encroached by about eight feet onto the Cutler’s other parcel, which lay directly to the west at 651 West Alegria Avenue (the 651 Property).

A chain- link fence marked the western edge of the driveway and planter, separating the 643 Property and the encroachments from the remainder of the 651 Property. The encroaching area consisted of a strip of land measuring about 8 feet wide by about 157 feet long, for a total area of almost 1,300 square feet, or about 13 percent of the 651 Property’s 10,000-square-foot lot.

Edwin Cutler applied to the city to adjust the boundary between the 643 Property and the 651 Property to the line marked by the chain-link fence. The Sierra Madre Planning Commission approved his request, subject to a city engineer’s review of the parcel map and boundary line adjustment.

But for reasons that were not clear from the record, the process was never completed and the legal boundary line remained as before.

Although the lot line adjustment had not been completed, the Cutlers, and future owners Bevon, and Shewmake proceeded much as if it had been.

They obtained building permits from the city and completed construction on the house, and the chain-link fence separating the 651 Property from the 643 Property was replaced with a concrete block wall.

In 1986, the Cutlers conveyed the 651 Property to Bevon and Shewmake, and on the same day, Bevon and Shewmake sold the property to another family. Both grant deeds described the 651 Property according to the original boundary lines, without mentioning or accounting for the encroachments on the strip of land along the property’s eastern edge.

Plaintiffs Cesar and Tatana Spicakova Romero (the Romeros) purchased the 651 Property in 2014.

That same year, defendants Li-Chuan Shih and Tun-Jen Ko (the Shih-Kos) purchased the 643 Property from Ann Cutler’s estate.

At the time they purchased their respective properties, neither the Romeros nor the Shih-Kos were aware of any easements, encroachments, or boundary disputes.

None had been disclosed by the sellers in the respective purchase agreements or advertising materials, and neither party had taken steps to verify that the concrete block wall separating the properties conformed to the true boundary line.

The Romeros did not discover that anything was amiss until about a year after purchasing the 651 Property, when Cesar Romero was taking measurements in his front yard for a landscaping project and realized that the yard was not as wide as he expected. The Romeros commissioned a survey, which confirmed that the 643 Property’s garden planter and driveway were encroaching on the 651 Property.

The Romeros filed a lawsuit against the Shih-Kos, requesting that the Shih-Kos be ordered to remove all encroachments and pay damages.

The Shih-Kos filed a cross- complaint alleging that when the Cutlers separated the 643 and 651 Properties in 1986, they created an implied easement over the disputed area in favor of the 643 Property.

In the alternative, the Shih-Kos asked the court to create an equitable easement in favor of the 643 Property over the disputed area, which would entitle the Romeros to compensation for the burden imposed on their property.

Interests in land can take several forms, including ‘estates’ and ‘easements.

An estate is an ownership interest in land that is, or may become, possessory.

An easement, by contrast, gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership.

The law recognizes several methods of creating an easement. Among other methods, the parties to a real property transaction may grant or reserve an easement as part of the conveyance of land; an individual may acquire an easement by prescription, through the continuous, hostile, and adverse use of the property; or a court acting in equity may order that an easement be created under specified circumstances.

The scope of the easement, like the scope of any servitude on land, is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.

When an easement is granted or reserved as part of a real property transaction, the grant or reservation may appear expressly in the terms of a written instrument.

But even without a writing, California law recognizes the grant or reservation of the easement by implication in appropriate cases.

The doctrine of implied easements is applied by the courts to carry into effect the intention of the parties as manifested by the facts and circumstances of the transaction.

California has codified the doctrine of implied easements in Civil Code section 1104.

Section 1104, which has remained unchanged since its 1872 enactment, provides: “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”

In other words, when a grantor conveys a portion of an estate to another party but fails to expressly grant an easement in the written instrument, the law infers that the grantor and grantee intended the conveyed portion of the property to enjoy any preexisting uses of the grantor’s remaining estate that were “obvious[] and permanent[],” and the law accordingly implies an easement.

In such cases, for purposes of identification, the portion or parcel that is being used is called the quasi-servient tenement, and the portion or parcel benefited by the use is called the quasi-dominant tenement.

Where the statutory conditions are otherwise satisfied, if the owner conveys the quasi-dominant tenement, the grantee receives an implied easement for the use and benefit of his or her property over the quasi-servient tenement retained by the owner-grantor.

Although the Civil Code speaks only in terms of implying an easement in favor of a grantee, California also recognizes easements by implied reservation. The result is that a purchaser may take not only the obvious benefits but the obvious burdens as well.

Synthesizing the statutory text and common law elaboration of the doctrine, California appellate courts have summarized the elements of an implied easement as follows: an easement will be implied when, at the time of conveyance of property, the following conditions exist:

(1) the owner of property conveys or transfers a portion of that property to another;

(2) the owner’s prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and

(3) the easement is reasonably necessary to the use and benefit of the quasi- dominant tenement.

Implied easements are not favored in the law.

Because an implied easement deprives the property owner of the exclusive use of that property, courts do not lightly infer that the parties intended to create one.

When an exclusive easement has been established, a dominant tenement owner may use the easement area only for a limited set of purposes, and the easement may be terminated if the dominant tenement owner ceases to use the area for those purposes.

The trial court’s implied easement finding did not result in the creation of any new property rights; it instead clarified the respective rights of the neighbors as determined by the intentions of the parties at the time the two adjacent parcels were severed and sold to third parties.

In other words, the trial court’s finding means the Romeros purchased the 651 Property subject to the implied easement; their bundle of property rights never included the right to make practical use of the easement’s surface area, and it was not a taking.

LESSONS:

1.         The evidentiary standard for recognizing an implied easement is a high one, and that standard will naturally be more difficult to meet where, as here, the nature of the easement effectively precludes the property owners from making most practical uses of the easement area.

2.         Interests in land can take several forms, including ‘estates’ and ‘easements.

3.         An estate is an ownership interest in land that is, or may become, possessory.

4.         An easement, by contrast, gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership.

5.         The law recognizes several methods of creating an easement. Among other methods, the parties to a real property transaction may grant or reserve an easement as part of the conveyance of land; an individual may acquire an easement by prescription, through the continuous, hostile, and adverse use of the property; or a court acting in equity may order that an easement be created under specified circumstances.