April 2020 Update
The extent of an express easement is determined by the terms of the grant. CC §806. A grant of an easement is interpreted in accordance with the law of contracts. Ranch at the Falls LLC v O’Neal (2019) 38 CA5th 155, 188. See §1.16.
A prescriptive easement is acquired by unauthorized use of the burdened property. Permissive use does not ripen into an easement. However, the permission to use another’s property must be for the portion of the property the user is actually using. Permission to use one portion of a parcel does not constitute permission for use elsewhere on the parcel. Ditzian v Unger (2019) 31 CA5th 738. See §1.18.
The equitable easement doctrine can be applied by the courts to allow continued use of a driveway, road, or trail for access, or even to create access where none existed. The doctrine requires that the trespasser prove that the hardship he or she would suffer by being forced to remove the encroachments or cease the trespass is greatly disproportionate to the hardship the landowner would suffer by maintenance of the encroachment or trespass. Shoen v Zacarias (2015) 237 CA4th 16, 19 (Shoen I). In Shoen I, the trial court’s opinion granting Zacarias an equitable easement was reversed, because discontinuance of the defendant’s use of a portion of plaintiff’s property for her unaffixed lawn furniture did not constitute a serious hardship. The parties’ fight, however, was not over. Shoen then sued Zacarias for trespass, nuisance, and other causes of action over Zacarias’ use of the portion of land in question, totaling a grand 500 square feet. Shoen v Zacarias (2019) 33 CA5th 1112 (Shoen II). Zacarias, knowing after Shoen I that she could not claim an easement, now claimed a license based on her history of permissive use. The trial court considered that only Zacarias had access to the disputed area, which was on a hillside and was not accessible from the Shoen side. The trial court also found Zacarias spent substantial amounts of money or labor improving the area. The trial judge ruled that Zacarias had an exclusive, irrevocable license. The appellate court reversed, noting that an irrevocable license is functionally indistinguishable from an easement. The court of appeal ruled that Zacarias’ lawn furniture and landscaping did not constitute a substantial expenditure. Further, “courts are rightly reluctant to exercise ‘what is, in effect, the right of eminent domain by permitting [the licensee] to occupy property owned by another.’” 33 CA5th at 1120. Also, the license should not have been granted in perpetuity. While this is nominally a license case, the rules as to easements are parallel. Shoen II was remanded. It remains to be seen whether there will be a Shoen III. See §1.27.
An easement may be terminated if it is overburdened by significant increased use. However, use of the easement by the dominant estate’s guests does not constitute an overburden. See Ditzian v Unger (2019) 31 CA5th 738, 747. In Ditzian, the owner of the easement allowed Airbnb guests to use the easement. This was held not to overburden the easement. See §1.37.
In Glatts v Henson (1948) 31 C2d 368, 370, the court held that the owner of the servient tenement on which an easement is a burden may extinguish the easement by adverse possession. Under amendments to CCP §325, which became effective January 1, 2011, the requisite taxes must be timely paid by a person claiming title through adverse possession. McLear-Gary v Scott (2018) 25 CA5th 145 imposes the burden on the servient tenement to obtain adverse possession not only of payment of taxes, but timely payment of taxes. Should the servient tenement allow any property taxes to become delinquent, that will defeat the claim. See §2.17.
In Hansen v Sandridge Partners, L.P. (2018) 22 CA5th 1020, the court held that when a farmer appropriated land that it knew belonged to another, that knowledge negated the element of innocence for an equitable easement. Its desire for exclusive use negated any right to a prescriptive easement, and its failure to pay taxes negated the requirement of payment of taxes. See §2.48.
Tree roots often cause cracks or upheavals in sidewalks. However, 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 City of Temecula (2019) 37 CA5th 1092. See §4.8.
The list of cities that have enacted “view ordinances” has been updated. See §4.10.
In California, attorney fees are not recoverable unless authorized by statute or contract. CCP §1021. In tree disputes, a plaintiff may seek fees under the theory that the injury occurred on lands either under cultivation or intended or used for the raising of livestock. See CCP §1021.9. The trespass need not occur onto the specific portion of the land under cultivation. Hoffman v Superior Ready Mix Concrete, L.P. (2018) 30 CA5th 474, 483. See §4.42.
The California Supreme Court heard oral argument in Scholes v Lambirth Trucking Co. (review granted June 21, 2017, S241825; superseded opinion at 10 CA5th 590) on December 4, 2019, and a decision is pending at the time of this update. See §4.44.
Penal Code §600.2 has been amended to make it a crime to intentionally cause injury to a guide, service, or signal animal. See §6.4.
Food & Agricultural Code §§30503.5 and 30526 require animal shelters to disclose, in writing, that a dog bit a person before giving it away. Formerly, shelters had no such duty. See §6.10.
In People v Smalling (2019) 36 CA5th Supp 1, the defendant was cited for an infraction for permitting her dog to cause injury or death to a service dog. The victim was granted a restitution hearing. See §6.26.
An amendment of Health & S C §17980.7, effective January 1, 2020, added the requirement that notice of the petition for the appointment of a receiver to implement repairs on a substandard building be “posted in a prominent place on the substandard building.” The amendment also eliminated the personal service requirement for persons with a recorded interest in the property. They may be served by first-class mail. See §9.47.
On September 18, 2018, then-Governor Brown signed Assembly Bill (AB) 626, establishing the “microenterprise home kitchen operation” (MHKO) as a retail food facility effective January 1, 2019. These are restaurants operated by the resident of a private home. Then, on October 7, 2019, AB 377 was approved by Governor Newsom. It was intended as clean-up legislation and modified the conditions for a city, county, or city and county to permit MHKOs within its jurisdiction, as well as applicable inspection and food safety standards. See §12.43.
A new section discussing “sidewalk sales” has been added. See §12.43A.
In HomeAway.com, Inc. v City of Santa Monica (9th Cir 2019) 918 F3d 676, the Ninth Circuit Court of Appeals upheld the City of Santa Monica’s “Home-Sharing Ordinance” against a challenge by Airbnb, Inc. and Homeaway.com, who argued that the city’s ordinance ran afoul of the Communications Decency Act of 1996 (47 USC §230) and the First Amendment because it required them to monitor the content of third-party listings on their sites and to remove listings for unlicensed properties. The court found that the ordinance only prohibits processing transactions for unregistered properties and does not proscribe, mandate, or even discuss the content of the listings that the platforms display on their websites. It requires only that home-sharing transactions involve properties that are licensed by the city. See §12.44.
In order to state a cause of action for trespass, a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights. McBride v Smith (2018) 18 CA5th 1160. See §16.16.
Even one in peaceable though wrongful possession of real property may sue in tort for forcible interference with that possession, even in the absence of injury to his person or goods. Veiseh v Stapp (2019) 35 CA5th 1099, 1105. See §16.20.
In Weiss v People ex rel Dep’t of Transp. (2018) 20 CA5th 1156, the court noted that although both “eminent domain” proceedings and “inverse condemnation” actions implement the constitutional rule that private property may not be “taken or damaged” for public use without just compensation, the proceedings are not identical, because a property owner initiates an inverse condemnation action, while an eminent domain proceeding is commenced by a public entity. Eminent domain actions typically focus on the amount of compensation owed the property owner, since by initiating the proceeding the government effectively acknowledges that it seeks to take or damage the property in question, while in an inverse condemnation action, the property owner must first clear the hurdle of establishing that the public entity has, in fact, taken or damaged his or her property before he or she can reach the issue of just compensation. See §16.78.
In Integrated Lender Servs., Inc. v City of Los Angeles (2018) 22 CA5th 867, the court noted that a lis pendens provides constructive notice of litigation, such that any judgment later obtained in the action relates back to the filing of the lis pendens. A lis pendens clouds title until the litigation is resolved or the lis pendens is expunged, and any party acquiring an interest in the property after the action is filed will be bound by the judgment. See §17.2.
In addition to traditional mandamus, an action for declaratory relief is generally an appropriate means of facially challenging a legislative or quasi-legislative enactment of a public entity. However, the appropriate remedy for a challenge to the application of an enactment to specific property—i.e., an “as-applied challenge”—is through administrative mandamus. Beach & Bluff Conservancy v City of Solana Beach (2018) 28 CA5th 244, 259. See §17.28.