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A COMMON OWNER did IT, so can i: Implied Easements Upon Division of Title
by Elizabeth Brekhus
Even the most seasoned real estate attorney may never have had a case involving the somewhat obscure theory of implied easement upon division of title. My first encounter with the legal theory arose in a case I was handling for a friend. My friend called me, delighted, because he had learned that the back of his residence encroached onto adjoining property by as much as 11 feet and in his mind, he just got 11 extra feet of property by doing nothing. About 20 seconds later he became my client.
To further complicate matters, the portion of the residence that encroached on the adjoining property included a back door, porch, and stairs that led to an area, also on the adjoining property, that my client had always considered his, and that was necessary to the use of a parking area and a side street. Thus my client wanted to be able to forever maintain his encroaching residence and to continue using an additional amount of the neighboring property for access to and from his residence.
My client acquired his property from Deutsche Bank. Deutsche Bank acquired title by foreclosing on a loan to the previous owner, we will call him “Original Owner.” A little research revealed that the adjoining property had also been owned by Original Owner, and that the current owner, Bank of America, had also acquired title to that adjoining property by foreclosure. In fact, the two properties had, historically, always been owned by the same owner, until Original Owner went out and burdened each property with loans from different banks.
The immediate practical problem we faced was that BofA was offering the adjoining property for sale without disclosing the existence of the encroachment. I therefore filed suit and placed a lis pendens on the property the same day I got to disillusion my friend about his “good news.”
I got the impression that BofA wanted this case off its books when its counsel suggested I propose something she could “sell” to her client as a reasonable outcome given the situation.
The encroachment issue was fairly simple. It was highly unlikely a Court would order my client to remove his home given that it had been built by a mutual predecessor of the parties, some 40 years prior. It seemed far more likely that the Court would find the relative hardship to be in our favor, Christensen v. Tucker (1st Dist. 1952) 114 Cal.App.2d 554, 562-563, and grant an exclusive, equitable easement to maintain the encroachments, Hirshfield v. Schwarz (2d Dist. 2001) 91 Cal.App.4th 749, 754. Counsel for BofA did not dispute this.
The harder issue was justifying an access easement. Because the two properties had been owned by a common owner up until a few years ago, there was no way we could argue my client had acquired a prescriptive easement, which requires five years of open, notorious, continuous use and use hostile to the true owner and under a claim of right. Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570, Applegate v. Oata (2d Dist. 1983) 146 Cal.App.3d 702, 708; Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:33.
A property owner cannot acquire prescriptive rights in other property they own, since such use is not hostile to the true owner, and thus Original Owner and his predecessors could not have perfected an easement right of access. Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §§ 15:33 and 15:35. Thus, some other legal doctrine was going to have to come to the rescue to support my client’s claim to the adjoining property.
The implied easement upon division of title doctrine applies when a common owner of two properties uses one parcel of land for the use and benefit of another parcel, and then sells one parcel. In such a case, the portion or parcel being used is called the “quasi-servient tenement” and the portion or parcel being benefitted is called the “quasi-dominant tenement.” Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:20, and cases cited therein. In that case, the purchaser acquires the sold parcel with all the benefits of and all the burdens associated with that property. There is no easement when the parcels are both owned by one coterminous owner, but upon the sale of one parcel, benefits are conferred and burdens are assumed in the manner in which they existed openly and visibly at the time of the transaction. Kytasty v. Godwin (4th Dist. 1980) 102 Cal.App.3d 762, 772-774; Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:20.
The facts of my case that compelled a finding of an implied easement on division of title were:
(1) there was a common owner of the two properties and a transfer or conveyance of one parcel by the common owner;
(2) the parties’ common predecessor built my client’s residence to encroach onto his other parcel, and some amount of additional land was needed if my client was to:
(A) exit the back door and stairs;
(B) maintain the back of his residence;
(C) access a gate to a side street that was attached to a fence that extended from his property; and
(D) conveniently access a driveway easement; and
(3) the use of the property by the parties’ predecessor was open and visible because the use was necessary to reasonably use the encroaching residence and because the area was landscaped differently from the landscaping surrounding the neighboring residence, as if the property belonged to my client’s parcel.
Since handling my friend’s case, I have invoked the doctrine of implied easement upon division of title in subsequent matters. In another case arising out of a foreclosure, a commercial building that consumed the entire footprint of its own parcel utilized three adjacent paved lots for parking. Each parking space on the adjoining lots was labeled as being reserved for a specific tenant of the commercial building. Portions of the building’s fixtures encroached upon the adjoining lots, and its emergency and disabled access led directly onto those lots. Wells Fargo became the owner of the three adjoining lots when it foreclosed a mortgage over them. Months later, Union Bank foreclosed its own mortgage over the commercial building and sold the building to my client nearly a year later. I became involved when Wells Fargo threatened to sell the paved lots and prevent my client’s future use of them. We filed an action to quiet title to my client’s rights under a theory of implied easement upon division of title.
Though at the time of my client’s purchase, the commercial building and the adjoining lots had different owners (Union Bank and Wells Fargo, respectively), that disparity in ownership had not lasted long enough to create prescriptive rights. Research into the chain of title revealed that for nearly thirty years before the foreclosure sale to Wells Fargo, the four parcels had belonged to a series of common owners. When the city approved the subdivision of the four parcels in the 1970’s, the parcels had a common owner and two of the adjoining lots were being used for the commercial building’s parking. Subsequently, the building that had been located on the third lot was demolished and for the past decade it too had been used as parking for the commercial building.
In that case, we were helped by the additional fact that when the city granted, via a parcel map waiver, the subdivision of the four parcels it did so on the condition that parking be maintained for the commercial building on two of the adjoining parcels for the lifetime of the building. As this condition was recorded in the parties’ chain of title, the Subdivision Map Act also compelled the conclusion that my client’s building was entitled to use those lots for parking.
As to an implied easement on division of title, the facts that compelled such a finding were:
(1) there was a common owner of the four lots and a transfer of the three adjoining lots via the foreclosure sale to Wells Fargo;
(2) the common owner of the four lots retained the parcel with the commercial building until it was foreclosed upon and sold to my client;
(3) there was significant evidence of existing obvious and apparently permanent use by the commercial building’s tenants of the parking area on the adjoining three parcels:
(A) each parking space was reserved and labeled for specific tenants of the commercial building and contained the tenants’ names
on the space;
(B) two large dumpsters on one of the adjoining lots served the commercial building;
(C) disabled and emergency access (both a permanent ramp and a railing) extended from the commercial building and encroached onto one of the adjoining lots;
(D) a storage utility shed located on one of the adjoining lots served the commercial building; and
(E) lights on the commercial building shone onto the parking on the adjoining lots and were paid for by the owner of the commercial building; and
(4) use of the adjoining lots by the parties’ predecessor was reasonably necessary for the beneficial use of the commercial building because:
(A) it provided disabled and emergency access for the building;
(B) it was necessary to provide garbage facilities given that the building consumed the entire footprint of the property; and
(C) those lots served as tenant parking.
At first impression, you might think this theory could only be raised in very limited circumstances. Though the two cases discussed above happen to involve foreclosures, the doctrine can be implied anytime a grantor sells one parcel or even a portion of a parcel and fails to specifically disavow the conveyance of incidental easement rights when such use can reasonably be assumed from the existing use of the property. Horowitz v. Noble (1st Dist. 1978) 79 Cal.App.3d 120, 130 citing Miller & Starr, Cal. Real Estate (1977) §18:32. “It is presumed that the parties contracted in reference to the apparent condition of the property at the time of the sale.” Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:20, citing Rosebrook v. Utz (1st Dist. 1941) 45 Cal.App.2d 726, 728-730, and other cases for the same rule.
The conditions that must exist to support a finding of an implied easement upon division of title are:
(1) common ownership of a parcel, and transfer or conveyance of one parcel, or a portion of a parcel, to another;
(2) prior to the division of title, there must have been an existing obvious, and apparently permanent, use of the quasi-easement, by the common owner; and
(3) the easement must be reasonably necessary to the use and benefit of the quasi-dominant tenement. (“Necessary” meaning merely that it is convenient for the use of the dominent tenement.)
Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §§15:20, 15:23.
The doctrine applies to any “conveyance … accomplished in any manner that transfers an interest in real property.” Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:21. Thus, an implied easement upon division of title may arise when a property is partitioned between co-tenants. Id. It has also been applied upon the death of a property owner who passes property on to two or more heirs, in which case, the heir who acquires the quasi-dominant tenement also acquires the right to use the quasi-servient tenement. Id. And, as illustrated by my two examples, the doctrine applies where a property is divided as a result of a loan default and foreclosure sale. Id.
The doctrine can also be found to imply an easement in favor of a tenant, and notwithstanding the contrary provisions of Civil Code §820 (providing that a tenant “has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired”), when the easement is necessary for the beneficial enjoyment of the premises leased. Dubin v. Robert Newhall Chesebrough Trust (2d Dist. 2002) 96 Cal.App.4th 465, 472-473.
The doctrine may also be applied to support a finding that an owner has the right to maintain an encroaching structure on neighboring property. Dixon v. Eastown Realty (2d Dist. 1951) 105 Cal.App.2d 260, 263-264.
At least one case has found an implied easement existed upon division of title to discharge surface waters over the land of another. Fischer v. Hendler (1st Dist. 1942) 49 Cal.App.2d 319, 323.
The circumstances under which an implied easement will be found is not unlimited. California does not generally recognize implied easements for light or air, Pacifica Homeowner’s Assoc. v. Wesley Palms Retirement Community (4th Dist. 1986) 178 Cal.App.3d 1147, 1152, or for solar purposes. Miller & Starr, Cal. Real Estate (4th ed. 2018) §§ 15:10 and 15:11. Implied easements are an exception to the general rule that easements are created by prescription or express grant. Id. at §§15:13 and 15:19. Because the creation of an easement denies a property owner the exclusive right to use and control their property, implied easements are disfavored, Horowitz, 79 Cal.App.3d at 131, and the circumstances under which they will be found are limited to recognized exceptions. Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:19. Having said that, in my law practice, I have applied this theory successfully in many cases.
Elizabeth Brekhus of Brekhus Law Partners has been practicing real property litigation in Marin County and the Greater Bay Area since 1997.
To further complicate matters, the portion of the residence that encroached on the adjoining property included a back door, porch, and stairs that led to an area, also on the adjoining property, that my client had always considered his, and that was necessary to the use of a parking area and a side street. Thus my client wanted to be able to forever maintain his encroaching residence and to continue using an additional amount of the neighboring property for access to and from his residence.
My client acquired his property from Deutsche Bank. Deutsche Bank acquired title by foreclosing on a loan to the previous owner, we will call him “Original Owner.” A little research revealed that the adjoining property had also been owned by Original Owner, and that the current owner, Bank of America, had also acquired title to that adjoining property by foreclosure. In fact, the two properties had, historically, always been owned by the same owner, until Original Owner went out and burdened each property with loans from different banks.
The immediate practical problem we faced was that BofA was offering the adjoining property for sale without disclosing the existence of the encroachment. I therefore filed suit and placed a lis pendens on the property the same day I got to disillusion my friend about his “good news.”
I got the impression that BofA wanted this case off its books when its counsel suggested I propose something she could “sell” to her client as a reasonable outcome given the situation.
The encroachment issue was fairly simple. It was highly unlikely a Court would order my client to remove his home given that it had been built by a mutual predecessor of the parties, some 40 years prior. It seemed far more likely that the Court would find the relative hardship to be in our favor, Christensen v. Tucker (1st Dist. 1952) 114 Cal.App.2d 554, 562-563, and grant an exclusive, equitable easement to maintain the encroachments, Hirshfield v. Schwarz (2d Dist. 2001) 91 Cal.App.4th 749, 754. Counsel for BofA did not dispute this.
The harder issue was justifying an access easement. Because the two properties had been owned by a common owner up until a few years ago, there was no way we could argue my client had acquired a prescriptive easement, which requires five years of open, notorious, continuous use and use hostile to the true owner and under a claim of right. Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570, Applegate v. Oata (2d Dist. 1983) 146 Cal.App.3d 702, 708; Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:33.
A property owner cannot acquire prescriptive rights in other property they own, since such use is not hostile to the true owner, and thus Original Owner and his predecessors could not have perfected an easement right of access. Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §§ 15:33 and 15:35. Thus, some other legal doctrine was going to have to come to the rescue to support my client’s claim to the adjoining property.
The implied easement upon division of title doctrine applies when a common owner of two properties uses one parcel of land for the use and benefit of another parcel, and then sells one parcel. In such a case, the portion or parcel being used is called the “quasi-servient tenement” and the portion or parcel being benefitted is called the “quasi-dominant tenement.” Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:20, and cases cited therein. In that case, the purchaser acquires the sold parcel with all the benefits of and all the burdens associated with that property. There is no easement when the parcels are both owned by one coterminous owner, but upon the sale of one parcel, benefits are conferred and burdens are assumed in the manner in which they existed openly and visibly at the time of the transaction. Kytasty v. Godwin (4th Dist. 1980) 102 Cal.App.3d 762, 772-774; Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:20.
The facts of my case that compelled a finding of an implied easement on division of title were:
(1) there was a common owner of the two properties and a transfer or conveyance of one parcel by the common owner;
(2) the parties’ common predecessor built my client’s residence to encroach onto his other parcel, and some amount of additional land was needed if my client was to:
(A) exit the back door and stairs;
(B) maintain the back of his residence;
(C) access a gate to a side street that was attached to a fence that extended from his property; and
(D) conveniently access a driveway easement; and
(3) the use of the property by the parties’ predecessor was open and visible because the use was necessary to reasonably use the encroaching residence and because the area was landscaped differently from the landscaping surrounding the neighboring residence, as if the property belonged to my client’s parcel.
Since handling my friend’s case, I have invoked the doctrine of implied easement upon division of title in subsequent matters. In another case arising out of a foreclosure, a commercial building that consumed the entire footprint of its own parcel utilized three adjacent paved lots for parking. Each parking space on the adjoining lots was labeled as being reserved for a specific tenant of the commercial building. Portions of the building’s fixtures encroached upon the adjoining lots, and its emergency and disabled access led directly onto those lots. Wells Fargo became the owner of the three adjoining lots when it foreclosed a mortgage over them. Months later, Union Bank foreclosed its own mortgage over the commercial building and sold the building to my client nearly a year later. I became involved when Wells Fargo threatened to sell the paved lots and prevent my client’s future use of them. We filed an action to quiet title to my client’s rights under a theory of implied easement upon division of title.
Though at the time of my client’s purchase, the commercial building and the adjoining lots had different owners (Union Bank and Wells Fargo, respectively), that disparity in ownership had not lasted long enough to create prescriptive rights. Research into the chain of title revealed that for nearly thirty years before the foreclosure sale to Wells Fargo, the four parcels had belonged to a series of common owners. When the city approved the subdivision of the four parcels in the 1970’s, the parcels had a common owner and two of the adjoining lots were being used for the commercial building’s parking. Subsequently, the building that had been located on the third lot was demolished and for the past decade it too had been used as parking for the commercial building.
In that case, we were helped by the additional fact that when the city granted, via a parcel map waiver, the subdivision of the four parcels it did so on the condition that parking be maintained for the commercial building on two of the adjoining parcels for the lifetime of the building. As this condition was recorded in the parties’ chain of title, the Subdivision Map Act also compelled the conclusion that my client’s building was entitled to use those lots for parking.
As to an implied easement on division of title, the facts that compelled such a finding were:
(1) there was a common owner of the four lots and a transfer of the three adjoining lots via the foreclosure sale to Wells Fargo;
(2) the common owner of the four lots retained the parcel with the commercial building until it was foreclosed upon and sold to my client;
(3) there was significant evidence of existing obvious and apparently permanent use by the commercial building’s tenants of the parking area on the adjoining three parcels:
(A) each parking space was reserved and labeled for specific tenants of the commercial building and contained the tenants’ names
on the space;
(B) two large dumpsters on one of the adjoining lots served the commercial building;
(C) disabled and emergency access (both a permanent ramp and a railing) extended from the commercial building and encroached onto one of the adjoining lots;
(D) a storage utility shed located on one of the adjoining lots served the commercial building; and
(E) lights on the commercial building shone onto the parking on the adjoining lots and were paid for by the owner of the commercial building; and
(4) use of the adjoining lots by the parties’ predecessor was reasonably necessary for the beneficial use of the commercial building because:
(A) it provided disabled and emergency access for the building;
(B) it was necessary to provide garbage facilities given that the building consumed the entire footprint of the property; and
(C) those lots served as tenant parking.
At first impression, you might think this theory could only be raised in very limited circumstances. Though the two cases discussed above happen to involve foreclosures, the doctrine can be implied anytime a grantor sells one parcel or even a portion of a parcel and fails to specifically disavow the conveyance of incidental easement rights when such use can reasonably be assumed from the existing use of the property. Horowitz v. Noble (1st Dist. 1978) 79 Cal.App.3d 120, 130 citing Miller & Starr, Cal. Real Estate (1977) §18:32. “It is presumed that the parties contracted in reference to the apparent condition of the property at the time of the sale.” Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:20, citing Rosebrook v. Utz (1st Dist. 1941) 45 Cal.App.2d 726, 728-730, and other cases for the same rule.
The conditions that must exist to support a finding of an implied easement upon division of title are:
(1) common ownership of a parcel, and transfer or conveyance of one parcel, or a portion of a parcel, to another;
(2) prior to the division of title, there must have been an existing obvious, and apparently permanent, use of the quasi-easement, by the common owner; and
(3) the easement must be reasonably necessary to the use and benefit of the quasi-dominant tenement. (“Necessary” meaning merely that it is convenient for the use of the dominent tenement.)
Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §§15:20, 15:23.
The doctrine applies to any “conveyance … accomplished in any manner that transfers an interest in real property.” Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:21. Thus, an implied easement upon division of title may arise when a property is partitioned between co-tenants. Id. It has also been applied upon the death of a property owner who passes property on to two or more heirs, in which case, the heir who acquires the quasi-dominant tenement also acquires the right to use the quasi-servient tenement. Id. And, as illustrated by my two examples, the doctrine applies where a property is divided as a result of a loan default and foreclosure sale. Id.
The doctrine can also be found to imply an easement in favor of a tenant, and notwithstanding the contrary provisions of Civil Code §820 (providing that a tenant “has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired”), when the easement is necessary for the beneficial enjoyment of the premises leased. Dubin v. Robert Newhall Chesebrough Trust (2d Dist. 2002) 96 Cal.App.4th 465, 472-473.
The doctrine may also be applied to support a finding that an owner has the right to maintain an encroaching structure on neighboring property. Dixon v. Eastown Realty (2d Dist. 1951) 105 Cal.App.2d 260, 263-264.
At least one case has found an implied easement existed upon division of title to discharge surface waters over the land of another. Fischer v. Hendler (1st Dist. 1942) 49 Cal.App.2d 319, 323.
The circumstances under which an implied easement will be found is not unlimited. California does not generally recognize implied easements for light or air, Pacifica Homeowner’s Assoc. v. Wesley Palms Retirement Community (4th Dist. 1986) 178 Cal.App.3d 1147, 1152, or for solar purposes. Miller & Starr, Cal. Real Estate (4th ed. 2018) §§ 15:10 and 15:11. Implied easements are an exception to the general rule that easements are created by prescription or express grant. Id. at §§15:13 and 15:19. Because the creation of an easement denies a property owner the exclusive right to use and control their property, implied easements are disfavored, Horowitz, 79 Cal.App.3d at 131, and the circumstances under which they will be found are limited to recognized exceptions. Miller & Starr, Cal. Real Estate (4th ed. Aug. 2018) §15:19. Having said that, in my law practice, I have applied this theory successfully in many cases.
Elizabeth Brekhus of Brekhus Law Partners has been practicing real property litigation in Marin County and the Greater Bay Area since 1997.
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