August 2020 Update
Supreme Court Cases. In Knick v Township of Scott (2019) ___ US __, 139 S Ct 2162, 2167, the United States Supreme Court held that a property owner may bring a taking claim in federal court under 42 USC §1983 without first bringing an inverse condemnation action in state court. See §§1.43, 10.69A.
Owners of property containing (or adjacent to) “waters of the United States” risk substantial criminal and civil penalties for activities causing a discharge of fill material into such waters without a permit. In Hawaii Wildlife Fund v County of Maui (2020) ___ US ___, 140 S Ct 1462, the United States Supreme Court held that federal permits are required for discharges to groundwater that will ultimately reach “waters of the United States” if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters. See §3.20.
In Scholes v Lambirth Trucking Co. (2020) 8 C5th 1094, the California Supreme Court held that the 5-year statute of limitations and heightened damages provisions of CC §3346 do not apply to injuries to timber caused by negligently set fires; they apply primarily to “timber trespass,” the kind of direct, intentional injury to trees on the property of another that would be perpetrated by actions such as deliberately cutting down a neighbor’s trees. See §§8.30, 10.63.
Pending before the California Supreme Court is Weiss v People ex rel Dep’t of Transp. (review granted June 13, 2018, S248141; superseded opinion at 20 CA5th 1156) (court of appeal upheld owners’ claim that sound wall along freeway increased impact of noise, vibration, glare, and dust on their properties, obstructed their ocean views, interfered with enjoyment of their properties, and diminished property values). See §10.43.
Profits à Prendre and Licenses. The owner of subsurface rights in real property does not own the oil and gas that may lie beneath the land’s surface; instead, that fee owner holds a “profit à prendre,” or right to extract that oil and gas from the ground. Leiper v Gallegos (2019) 42 CA5th 394, cited in §§1.4, 3.2, 3.3.
An unrecorded irrevocable license does not bind a subsequent purchaser of the property burdened by the license if the purchaser has no actual or constructive notice of the license. See Gamerberg v 3000 E. 11th St., LLC (2020) 44 CA5th 424 (involving unrecorded right to use parking spaces). See §§1.5, 1.71, 10.85.
Equitable and Prescriptive Easements. Civil Code §1009 prevents use of private property, other than coastal property as defined in the statute, by members of the public for recreational purposes from ripening into prescriptive rights. But §1009 does not prevent a landowner from acquiring an appurtenant easement over neighboring land for access to a state park. Ditzian v Unger (2019) 31 CA5th 738. See §§1.32, 7.11, 8.43A, 10.47.
In California, the legal foundation for establishing an easement by prescription is entirely in the common law. Adverse use by the servient owner for 5 years, however, may terminate a private easement or right-of-way. In McLear-Gary v Scott (2018) 25 CA5th 145, a quiet title cause of action alleged that the plaintiff acquired a prescriptive easement, and the defendants’ affirmative defense alleged that plaintiff’s adverse use of a road over defendants’ property was interrupted and barred by defendants’ maintenance of a locked gate on the road that prevented plaintiff’s use for 5 continuous years. This defense did not succeed, because the defendants failed to timely pay taxes, an essential element of adverse possession. See §§1.38, 1.69, 8.22–8.23, 10.42, 10.47, 10.49, 10.65A.
A court decree establishing an equitable easement must be based on the court’s balancing of the hardships to all parties, and the underlying trespass or encroachment must not be willful or negligent. Hansen v Sandridge Partners, L.P. (2018) 22 CA5th 1020, 1029 (defendants knew there was lot line uncertainty before they planted pistachio trees and installed drip irrigation system; also, court refused to decree prescriptive easement). See §§1.39, 1.44, 8.23–8.24, 10.47, 10.50.
Water Rights and Public Trust Doctrine. Substantial revisions were made in §§3.8–3.22B to clarify California water acquisition and enforcement rights, including the public trust doctrine. For example, although water rights in California are subject to (1) the prohibition against waste and unreasonable use and (2) the use policy declared in Wat C §106, water rights are also subject to the public trust doctrine, except for groundwater that is not interconnected with navigable surface waters. See additional authorities explaining this exception in §3.8.
The discussion of the Sustainable Groundwater Management Act (SGMA) and the power of local agencies to adopt and implement groundwater sustainability plans (GSPs) was substantially revised and expanded to explain in detail the functions of the GSPs and the broad authority of Groundwater Sustainability Agencies to achieve the SGMA’s goals. See §3.13D.
The California Coastal Act of 1976 (Coastal Act) (Pub Res C §§30000–30900) recognizes the public’s right to use tidelands and trust waters for recreational purposes and comprehensively provides a process for ensuring public access. See, e.g., Greene v California Coastal Comm’n (2019) 40 CA5th 1227 (upheld Coastal Commission's permit condition that property owners set back their construction of proposed duplex remodeling five feet from seaward property line because owners’ proposal would effectively privatize public beach in violation of Coastal Act’s access policy), cited in §§3.20, 3.22A.
Under President Trump’s Executive Order No. 13778 (Feb. 28, 2017) directing federal agencies to reconsider the narrower interpretation of “waters of the United States” under the Rapanos decision, the EPA and the Corps of Engineers finalized a revised definition of “waters of the United States,” which was achieved in 2020 under a two-step process, described in §3.20.
Construction, Access, and Utility Easements; Liability Issues. The grant of an easement for electric power lines over an area defined by metes and bounds description that also granted “free access” to the electrical facilities created a second floating easement, whose location became fixed by the grantee’s actual use. Southern Cal. Edison Co. v Severns (2019) 39 CA5th 815. See §§1.49–1.50, 5.3.
Even though the responsibility for maintaining sidewalks rests with the abutting landowner, the owner ordinarily is not liable to third parties for injuries caused by the sidewalk’s condition. The statutory duty to repair and maintain the sidewalk is owed to the government, unless the owner has caused a dangerous condition. For example, not all sidewalk defects or height differentials between adjacent concrete panels are “dangerous conditions” and may be trivial as a matter of law. Huckey v Temecula (2019) 37 CA5th 1092. See §2.45.
The Underpinning and Tieback Agreement form was updated and revised to add provisions that more definitively describe the right to enter and the duration of that right. See §4.16.
If the duration of a tieback agreement or a right granted in the agreement is defined by the occurrence of an event or completion of an activity, and the event or activity is delayed by causes not under the user’s control, such as interruption of electric service or pandemic shelter-in-place orders, then even in the absence of an explicit force majeure provision in the agreement creating the use right, it may be possible to assert provisions of CC §1511 as a defense to a claim for unlawful detainer or an injunction seeking cessation of the use. See §4.30.
Under the Communications Act of 1934, franchised cable operators receive access to public rights-of-way “within the area to be served by the cable system and which have been dedicated for compatible uses” for purposes of constructing cable systems. 47 USC §541(a)(2). Compatible uses include, for example, a “telecom cable” when the initial dedication was for “electric transmission.” West v Louisville Gas & Elec. Co. (7th Cir 2020) 951 F3d 827. See §5.19.
Because a privately owned public utility company has the power of eminent domain necessary for the construction and maintenance of its utility plants and transmission of utility services, it may be subject to an inverse condemnation claim when it causes injury to another utility company’s property or to adjacent private land in the course of maintaining its transmission facilities or providing utility services to the public. See In re PG&E Corp. (Bankr ND Cal 2019) 611 BR 110 (noting that California Supreme Court has not ruled on this issue and allowing claims to proceed for injury caused by wildfires under California court of appeal rulings). See §10.43.
Conservation Easements and Deductibility. On the adequacy of conservation easements as mitigation measures under the California Environmental Quality Act, when, for example, agricultural land is converted, see King & Gardiner Farms, LLC v County of Kern (2020) 45 CA5th 814, 875 (entering into binding agricultural conservation easement does not create new agricultural land to replace agricultural land being converted to other uses; easement does not offset loss of agricultural land (in whole or in part), which means environmental impact would remain significant). See §6.1.
The application of CEQA to certain conservation easements may be limited by exemptions for public agency transactions described in Pub Res C §21080.28, which became effective January 1, 2020. See §6.1.
The Checklist: Negotiating and Drafting Conservation Easements, in §6.1A was updated to assist practitioners in negotiating and preparing tax-qualified conservation easements.
In 2011, the legislature created a mechanism for converting Williamson Act conservation contracts to solar-use easements under certain considerations. But on January 1, 2020, former Govt C §51255.1 was repealed by operation of law. As of the writing of this 2020 update, there is no pending legislation to address this process gap. See §6.8B.
The Internal Revenue Service continues to scrutinize conservation easement contributions, and the courts have upheld the IRS’s disallowances of the tax deduction. See, e.g., Hoffman Props. II, LP v Commissioner (6th Cir 2020) 956 F3d 832 (affirmed tax court’s decision that donation of easement in façade of historic building did not satisfy perpetuity requirement); Coal Prop. Holdings, LLC v Commissioner (2019) 153 TC 126 (conservation easement deed was not in perpetuity, because in event of judicial extinguishment of easement, proportionate value was improperly reduced by amounts paid to satisfy prior claims against donor and amounts attributable to appreciation in value of improvements existing when easement was granted). See §6.15.
To qualify for a tax deduction, an easement area must be an identifiable specific piece of real property to be considered a “qualified real property interest” under §170(h)(2)(C). Compare, e.g., BC Ranch II, L.P. v Commissioner (5th Cir 2017) 867 F3d 547 with Pine Mountain Preserve v Commissioner (2018) 151 TC 247 (refused to follow BC Ranch II in interpreting similar easement provisions); See also Nathaniel A. Carter, TC Memo 2020–21, all discussed in the Practice Tip in §6.15.
In §6.36, easement drafting strategies were added that address how to provide for transfer fees to ensure compliance with CC §1098.6(a). Easement holders will need to be cognizant of how they manage transfer fees so that they comply with 12 CFR §1228.1. See also revisions to conservation easement agreement in §6.50 for addressing compliance with CC §1098.6.
In the absence of case law deciding whether conservation easements would merge with the fee in the event the easement holder acquires the fee, some easements provide that the interests can never merge. See Warning in §6.42.
Street, Trail, and Road Easements. Recent cases decided the applicability of statutory immunities for California public entities under the state Government Claims Act. See, e.g., Loeb v County of San Diego (2019) 43 CA5th 421 (immunity under Govt C §831.4 applies to pathway partially used for recreational purposes in addition to restroom access); Lee v Department of Parks & Recreation (2019) 38 CA5th 206 (campground pedestrian’s premises liability suit against state failed because immunity under §831.4 protected state). See §§2.49, 8.29.
The Tenth Circuit decided which public interest groups have a right to intervene in RS 2477 of the Revised Statutes litigation over interests in federally created rights-of-way in roads. See Kane County v U.S. (10th Cir 2020) 950 F3d 1323, cited in §7.16.
The calculation of damages for a taking under 16 USC §1247(d) depends not on the status of the land at the time of the Notice of Interim Trail Use (NITU) but on what interest the owner would have had in the absence of the NITU. That determination is made by applying state law easement principles. See, e.g., Castillo v Diaz (Fed Cir 2020) 952 F3d 1311 (application of centerline presumption under Florida law means that subsequent deeds to subdivision parcels did not grant ownership of land in railroad corridor), cited in §7.71.
The California Department of Transportation (DOT), in cooperation with county and city governments, must establish and update minimum safety design criteria for the planning and construction of bikeways. Its most recent Design Information Bulletin was issued in May 2018. See §7.82.
Litigation of Easements, Encroachments, and Neighboring Property Rights. Unless a homeowners association has the power to grant easements over streets in the community that are owned by individual homeowners, its grant of an easement to use the streets is not effective as to the rights of homeowners. The homeowners must be joined in any action to quiet title to the purported easement. See, e.g., Ranch at the Falls LLC v O’Neal (2019) 38 CA5th 155 (which also rejected plaintiff’s claims for prescriptive and equitable easements). See §§1.14, 1.44, 8.23, 8.48, 10.47, 10.50.
A court of appeal rejected an inverse condemnation action for damage to a private residence during a flood in Ruiz v County of San Diego (2020) 47 CA5th 504, which held that no implied acceptance of a privately owned drainage pipe occurred by its use as part of a public area drainage system; the county had expressly rejected an offer to dedicate and did not exercise dominion or control over the pipe located on private property. See §§1.42–1.43, 2.48, 10.69A.
In the absence of detailed arrangements between the parties to the easement, it is assumed that they are intended to exercise their respective rights and privileges by mutual accommodation. The servient owner, for example, may be liable for unreasonably interfering with the easement. Inzana v Turlock Irrigation Dist. Bd. of Directors (2019) 35 CA5th 429 (irrigation district entitled to terminate water deliveries to servient owner who unreasonably interfered with district’s easement; tree removal order justified on basis that trees would eventually interfere with access to pipeline and damage the pipe). See §§1.52, 1.77, 10.59.
Whether a trespass claim is barred by the 3-year statute of limitations (CCP §338(b)) depends on whether the trespass is permanent or continuing. A trespass is continuing if it can be remedied at a reasonable cost and by reasonable means. See Madani v Rabinowitz (2020) 45 CA5th 602 (cause of action based on encroaching fence was continuing trespass because cost of moving it would be only $5000 to $6000 and thus was not barred by statute of limitations), discussed in §§1.76, 8.20, 10.63.
Holders of private street, railroad, or other right-of-way easements may be subject to liability for injuries to third parties suffered on such easements. But easement holders are liable only if the injury is somehow related to the control they have over the easement. See Soto v Union Pac. R.R. (2020) 45 CA5th 168 (railroad company holding right-of-way easement had no duty to make area safe, because it did not own, possess, or control railroad crossing). See §§2.41, 8.29.
There is a split among the courts of appeal on the interpretation of negative easements, contained in covenants, conditions, and restrictions (CC&Rs) for modern tract developments, that are intended to preserve view, light, and air. A recent court of appeal declined to follow earlier cases and held that a view easement contained in CC&Rs should not be construed to require that the conduct of the defendant be “unreasonable” to support a finding that the defendant violated the easement. See Eisen v Tavangarian (2019) 36 CA5th 626 (declined to follow Zabrucky case and did not interpret CC&Rs to require that conduct of defendant be “unreasonable” to be actionable, when that language did not appear in CC&Rs). See §§8.37, 10.53.
Courts do not issue advisory opinions. Prospective interference with a prescriptive easement is speculative and courts will not address the issue in the absence of any evidence of a current controversy. City of Santa Maria v Adam (Santa Maria III) (2019) 43 CA5th 152, 161. See §§10.65, 10.65A.
Complaints in court actions to enforce easement rights are subject to a panoply of statutory, equitable, and factual defenses; some of the most common are listed in the newly revised defenses’ checklist in §10.65A.
The California anti-SLAPP statute authorizes a person to file a special motion to strike a cause of action arising from any act of that person “in furtherance of the person’s right of petition or free speech under the United States or California Constitution” that is made “in connection with a public issue.” CCP §425.16(b)(1). In a case arising from an existing driveway easement, Starview Prop. LLC v Lee (2019) 41 CA5th 203, the court of appeal remanded the matter for the trial court to consider on the merits of the anti-SLAPP motion that it had denied as untimely. See §10.65B.
Since January 1, 2019, an attorney representing a client participating in a mediation or a mediation consultation must, before the client agrees to participate in the process, provide the client with a printed disclosure containing the confidentiality restrictions described in Evid C §1119 and obtain a printed acknowledgment signed by the client stating that he or she has read and understands the restrictions. A new Judicial Council form for this requirement is in Mediation Disclosure Notification and Acknowledgment (Judicial Council Form ADR–200). See §10.91.
For a newly added form settlement agreement among neighboring property owners that can be adapted to resolve disputes about the use and scope of existing recorded easement grants, see §10.92A. For discussion of specific terms that might be needed for this type of agreement, see §§10.84–10.92.
Under CCP §1021.9, a prevailing plaintiff is entitled to an award of attorney fees in an action to recover damages to property resulting from trespass on lands under cultivation or used for grazing. See Kelly v House (2020) 47 CA5th 384 (in action for trespass, court of appeal concluded trial court erred in failing to award statutory attorney fees under §1021.9). See §10.96.