August 2022 Update
General Caution: The American Land Title Association (ALTA) has recently revised or is in the process of revising several policy forms and endorsements. While these revisions may not directly affect the following chapter discussions, practitioners are generally reminded to check for the most current ALTA forms by visiting https://alta.org/policy-forms/. Practitioners can also visit https://www.clta.org/ for the most current content by the California Land Title Association (CLTA). See, e.g., §§3.16, 7.31, 9.7, 9.18, 9.54.
Supreme Court Cases. In 2021, the U.S. Supreme Court substantially broadened the physical invasion category and limited the cases governed by the Penn Cent. test in Cedar Pt. Nursery v Hassid (2021) ___ US ___, 141 S Ct 2063, 2074, by holding that regulations requiring agricultural property owners to allow access to union organizers were a per se taking even though access was limited to specific times and locations. See §1.43.
In Foley Invs., L.P. v Alisal Water Corp. (2021) 72 CA5th 535, 546, the court more strictly defined “public use” in an inverse condemnation case. In Foley, the court determined that a water main that served only an apartment complex was not public use for purposes of imposing inverse condemnation liability. See §1.43.
A 2021 amendment to CCP §1245.060(c) provides that “the owner has a right to a jury trial, unless waived, on the amount of compensation for actual damage or substantial interference with the possession or use of the property.” Stats 2021, ch 401, §4. See §1.43.
In Pear v City & County of San Francisco (2021) 67 CA5th 61, the court held that under CC §1069, easements reserved by a private grantor in a grant of the fee to a public body must be interpreted in favor of the private grantor. The court went on to discuss at length uses permitted under an express reservation of easements for pasturage and construction of roads. See §§1.45, 1.58.
In Soto v Union Pac. R.R. Co. (2020) 45 CA5th 168, the court held that a railroad company had no duty to remedy dangerous conditions because it did not own or control the railroad crossing, and thus was the servient estate. See §1.54.
In Alliance for Responsible Planning v Taylor (2021) 63 CA5th 1072, the court applied the Nollan-Dolan framework to find that a citizen initiative forcing developers to complete all improvements required to mitigate cumulative traffic impacts was invalid because it required developers to contribute more than their fair share under Nollan-Dolan. See §2.8.
In Sackett v U.S. EPA (9th Cir 2021) 8 F4th 1075, the court applied the Rapanos significant nexus test to uphold the EPA’s jurisdiction over a wetland that affected the integrity of an adjacent lake. In January 2022, the U.S. Supreme Court granted certiorari of Sackett and will rule again on the proper test for defining waters of the United Sates (WOTUS). See §3.20.
On August 30, 2021, the U.S. District Court for the District of Arizona vacated and remanded the Navigable Waters Protection Rule (Pasqua Yaqui Tribe v U.S. EPA (D Ariz 2021) 557 F Supp 3d 949), causing the EPA and COE to implement the pre-2015 WOTUS definitions. On December 7, 2021, the EPA and COE, under the Biden Administration, published a proposed rule to revise the definition of WOTUS to include water that “significantly affects” a downstream traditionally navigable water, interstate water, or territorial sea (86 Fed Reg 69372 (Dec. 7, 2021)). See §3.20.
In April 2019, the State Water Resources Control Board (SWRCB) adopted a new wetland definition and procedures to regulate discharges of dredged or fill materials to waters of the state. See State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, available at https://www.waterboards.ca.gov/water_issues/programs/cwa401/wrapp.html#officialdocuments. The procedures became effective May 28, 2020. However, after a negative ruling that the SWRCB overstepped its authority in promulgating these new procedures, on April 6, 2021, the SWRCB re-adopted the procedures as a state policy for water quality control, again extending the procedures’ requirements to all waters of the state. See §3.20.
The right to a jury trial was added in the 2021 amendment of CCP §1245.060(c). See §4.5.
In 2021, the legislature enacted AB 721 (2021) (Stats 2021, ch 349, §2), which gives owners of affordable housing developments a process to invalidate (as applied to their developments) recorded restrictions (including negative easements) that restrict the number, size, or location of the residences that may be built on the property, or that restrict the number of persons or families who may reside on the property. See CC §714.6. See §6.2.
The Williamson Act was amended by Stats 2021, ch 611, to renumber §51203 to §51283.1. See §6.6.
The state-level process for solar use easements on Williamson Act land was not widely pursued, and on January 1, 2020, the former statute authorizing expedited termination of a Williamson Act contract in favor of a solar use easement (former Govt C §51255.1) was repealed by operation of law. As of the 2022 update, there is no pending legislation to revive this process. See §6.8B.
The issue of conservation contributions with a strict interpretation of Treas Reg §1.170A–14(e)(2) is discussed in §6.15.
Courts have deferred to IRS valuation methodologies when evaluating conservation easements. In Pine Mountain Preserve v Commissioner (11th Cir 2020) 978 F3d 1200, the Eleventh Circuit held that the Tax Court erred in not considering the value of an easement using methodologies set forth in IRS regulations. See §6.15.
In Pear v City & County of San Francisco (2021) 67 CA5th 61, the court held that under CC §1069, easements reserved by a private grantor in a grant of the fee to a public body must be interpreted in favor of the private grantor. It went on to discuss at length uses permitted under an express reservation of easements for pasturage and construction of roads. See §7.31.
In Kahn v Price (2021) 69 CA5th 223, the court held that a tree that blocked a view in violation of a San Francisco ordinance was a continuing nuisance because the tree was a nuisance that could be abated with trimming or cutting, similar to a previous ruling in Madani v Rabinowitz (2020) 45 CA5th 602. See §8.20.
When adjoining separate parcels of land are held by one fee owner, the use of one parcel for the benefit of tenants or other occupants of the other parcel cannot give rise to an easement because one cannot have an easement in one’s own land. But when the use of the one parcel by the occupants of the other parcel continues after the parcels are transferred into separate ownership, a prescriptive easement may arise. Husain v California Pac. Bank (2021) 61 CA5th 717. See §8.23.
Even though a use may be existing and obvious, it has been held that an implied easement cannot be exclusive because that would deprive the fee owner of any practical use and would be nearly equivalent to fee ownership. Romero v Shih (2022) 78 CA5th 326 (reversing trial court’s decision finding implied easement, but upholding trial court’s alternative ruling in favor of equitable easement). See §8.40.
When a private party reserves easement rights for itself in a grant deed by which fee title is conveyed to a public agency, CC §1069 requires that the reservation be interpreted in favor of the grantor just as it would in a transaction involving only private parties. Pear v City & County of San Francisco (2021) 67 CA5th 61, 71–73. See §8.46.
In practice, the parties rely on the title insurer to find recorded easements and on the surveyor to find unrecorded easements that affect the property. However, such reliance does not give rise to any legal duty or obligation on the part of the title insurer, unless a title insurance policy is issued, at which point the insurance contract governs the insurer’s obligations to its insured. See Siegel v Fidelity Nat’l Title Ins. Co. (1996) 46 CA4th 1181, 1192–1194. See §9.2.
The 2013 CLTA/ALTA Homeowner’s Policy of Title Insurance (see Policy in California Title Insurance Practice, App G (2d ed Cal CEB)) affords coverage under Covered Risk No. 5. However, Covered Risk No. 5 was eliminated in the 2021 approved form of this policy. See §9.43.
The definition of “solar energy systems” is discussed within the context of CC §801.5(a)(2)(A). See §10.15.
Normally, when a defendant fails to appear in a civil action after being served, the defendant’s default can be entered and the defendant has no right to be heard in court even if the plaintiff must prove its case at a default prove-up hearing. But because quiet title actions seek to determine the right to real property against the “whole world,” “in a quiet title action, after a defendant defaults, the plaintiff must prove the merits of its claim and the grounds for the relief sought with admissible evidence at a live hearing in open court and the defendant has a right to participate at this hearing.” Paterra v Hansen (2021) 64 CA5th 507, 532. See §10.42.
Two important factors in an inverse condemnation claim are whether the party creating the improvement has used its eminent domain power and whether the improvement in question is for a public use. When a water main served only the residents of a single apartment building, was not part of an overall distribution system, and was installed under a contract and not through eminent domain, it was held that the water main did not “provide a much greater service to the public at large.” Foley Invs., L.P. v Alisal Water Corp. (2021) 72 CA5th 535, 542–543. Therefore, the court in Foley concluded there could be no inverse condemnation claim when the water main ruptured. See §10.43.
The prescriptive easement theory may also be asserted as a cause of action to establish a prescriptive easement. Husain v California Pac. Bank (2021) 61 CA5th 717, 726. See §§10.47, 10.65A.