Of particular interest to apartment building owners and management companies, as well as to other real estate professionals, should be the recent California Court of Appeal decision concerning the interpretation of words in an easement for ingress and egress.
On February 21, 2014, the appellate court once again addressed the meaning of words in an easement. It began with a general definition of an “easement.” “An easement,” the court said, “is a restricted right to specific, limited, definable use or activity upon another’s property, which right must be less than the right of ownership.” Yes, that is a confusing definition.
In plain English, an easement is typically a property right given by an owner of property to an abutting neighbor to use the owner’s property in common with the owner. In other words, it creates a shared use of land for a very long time.
In the new case of Schmidt v. Bank of America, the words written in the easement said it was for ingress and egress for public road purposes over, along and across the owner’s property.
AOA members reading this article might believe that those words are clear. So do I. But the Superior Court came to its own strange interpretation, requiring the Court of Appeal to overturn the trial judge’s contrary determinations. The appellate court then found it necessary to explain the obvious.
Facts of the Case
The decades of historical events of the case are complex (although the easement in question is but a single sentence), so I will just summarize the material facts:
In 1941, two adjacent parcels of property in La Mesa, Californiawere owned by Rose Parks. In that year, Parks conveyed one of her properties to Edith Ford. In doing so, Parks reserved for herself and her successors an ingress and egress easement over the portion of the conveyed property for the benefit of her retained property. In other words, after conveying away the abutting property, she wanted to still be able to use that deeded property for ingress and egress to and from the property she kept.
Specifically, the exact words of the easement Parks established for herself and her successors, and for the benefit of the property she retained, were: “RESERVING to the grantor and her successors … the right of ingress and egress for public road purposes over, along and across the easterly 40 feet” of the property she conveyed. (The property she conveyed would ultimately become known as the Schmidt property.)
Four years later in 1945, Parks sold her retained parcel (which would ultimately become known as the “Aragon” parcel) to Clemons Smith. That conveyance included “an easement for public road purposes, and incidental purposes, over the easterly 40 feet” of theAragon property.
Following various other successive conveyances over the years, the property which Parks had first conveyed to Edith Ford eventually became owned by (and still is owned by) ArnoldSchmidt.
The Aragon Homeowners Association ultimately became the owner (and still is the owner) of the abutting property which Parks had initially kept for herself, and which abutted the Schmidt property.
Thus, the Aragonproperty had (and has) an easement for ingress and egress for public road purposes “over, along and across” the Schmidt property.
During construction of condominiums on the Aragonproperty, the real estate developer graded and paved the ingress and egress easement roadway area on the Schmidt parcel. It also installed various subterranean infrastructures including storm drains, storm pipes, oil separators and sand separators beneath the surface of the easement land.
Schmidt thereafter filed suit against Aragon and others for violation of the easement for constructing underground structures, among other alleged violations.
Aragonmoved to dismiss Schmidt’s case through a procedure known as “summary judgment,” urging that the initial easement the Parks reserved in 1941 for the benefit of herself and her successors (the last of whom wasAragon) became a public right-of-way, which would include any subsurface infrastructures accompanying its normal development, including the storm drains, pipes, separators.
Schmidt argued that anything beneath the surface violated the clear language of “over, along and across” of the easement.
The trial court acceptedAragon’s argument, rejected that of Schmidt, grantedAragon’s motion, and entered judgment against Schmidt. Do you agree with that judge?
Nature of an Easement
The appellate court did not. But before determining whether the easement created any subsurface rights as Aragon urged, or was more restricted as a surface-only roadway easement as Schmidt claimed, the Court of Appeal once again (they have probably done so thousands of times in the history of California jurisprudence) expressed what an easement is. As noted at the outset of this column, the Court explained that “An easement is a restricted right to specific, limited, definable use or activity upon another’s property, which right must beless than the right of ownership. It is fundamental that the language of a grant of an easement determines the scope of the easement.”
The underscored portion of the above sentence is part of what the appellate court focused on, together with the words “over, along and across” contained in the subject 1941 easement.
The Ruling of the Court
After much discussion, the Court of Appeal concluded that the easement which was first retained by Parks in 1941 and to which Aragon ultimately succeeded, did not expand the right of ingress and egress beyond “over, along and across” the Schmidt property so as to include anything other than ingress and egress and the construction of improvements reasonably necessary for that use.
As such, even though Parks had used the phrase “for public road purposes” in the 1941 easement, that reservation did not extend the right ofAragonto include activities other than those involving, or necessary to, the use of the easement as a means of access.
The court held that only the structures and improvements which were consistent with the right of ingress and egress and “reasonably necessary to enjoy the easement” were proper.
Obviously, the installation of subterranean drains, pipes and separators were not “over, along or across” the easement roadway. The appellate court overturned the Superior Court’s judgment and reinstated Schmidt’s case. It directed the lower court to determine at trial whether the subterranean structures, as well as certain surface improvements, were reasonably necessary forAragon’s use of the easement on the Schmidt property.
The Relevance of the Schmidt Case to Apartment Complexes
Even though the disputes in the Schmidt case arose in the context of the development of condominium projects, they are nonetheless relevant to apartment complexes. The same principles apply to both types of property.
The Court of Appeal’s decision provides guidance to apartment building owners and management companies. Most importantly, the case points out that owners and management entities should strictly construe recorded easements when trying to understand them. That is to say, private easements are to be limited to exactly what they say, plus what additional rights would be “reasonably necessary” to use and enjoy the easement.
As we can learn from the Schmidt case, if an apartment complex has an easement on the adjoining owner’s property for ingress or egress, that right is limited to going in and coming out, together with lateral and subsurface support for using the easement. The right would also include whatever else is reasonably necessary to facilitate its intended use for ingress and egress.
One such right might be to pave the roadway, particularly in an urban city setting. On the other hand, installation of an underground sewer pipe is not necessary for the use or enjoyment of the easement.
Another such right would be for the holder of the easement to maintain in good condition the driveway or roadway as well as the ground beneath so that the pathway does not collapse when a vehicle travels along it.
That being said about recorded ingress and egress easements, AOA members should bear in mind that even in the absence of a recorded instrument, an adjoining neighbor can acquire an easement on an owner’s property merely by visible, adverse and continuous use of the owner’s land for a period of more than five years.
Provided that the owner does not consent to the use, at the expiration of the statutory period of five years, the neighbor will have acquired a “prescriptive easement” on the owner’s property. That easement by prescription would confer upon the neighbor a permanent right to thereafter share in the use of the owner’s land.
Easements should be interpreted literally. There are times when their scope may be expanded, but only if the same is reasonably necessary to their continued use or enjoyment.
Further, as I have urged readers of this column for 2-1/2 decades, use of an owner’s property by a neighbor (or a neighbor’s tenants) is something that the owner should carefully monitor. Failure to do so may confer upon the neighboring user an easement on the owner’s property even if there is no recorded written instrument.
Any time that an owner observes unauthorized persons using his or her property, or authorized persons using it in an unauthorized way, the owner should promptly stop that usage, or alternatively seek legal counsel to prevent the usage from ripening into a prescriptive easement.
Finally, attorneys reading this column should peruse the entire Schmidt case as it is far more complex than what I have here presented.
Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 37 years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
Mr. Alberstone has been awarded an AV rating from Mardindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity. You may Google “Dale S. Alberstone” for further background.
The foregoing article was authored on March 3, 2014. It is intended as a general overview of the law and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067. Phone: (310) 277-7300.