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When a landowner grants someone permission to use her land, the owner is granting a license. A license may be created by express permission or by acquiescence. The owner generally retains the right to revoke that license at any time. The landowner may nevertheless be estopped from revoking that license—and the license will accordingly become an irrevocable license for “so long a time as the nature of it calls for”—if the person using the land has “expended money or its equivalent in labor” improving the land in the execution of the license. Critically, however, the expenditure of money or labor can make a license irrevocable only if that expenditure is “ ‘substantial,’ ” “considerable” or “great.”

In Lilli Shoen v Juliet Zacharias, two neighbors live at the base of a hill, their backyards running up the steep hillside. Part way up there was a flat spot on either side of the property line. The defendant Zacarias thought the flat spot was entirely on her property, and made some improvements:

(1) brought in contractors to grade the patch to make it flatter,

An easement in California is a right to use someone’s property which right is something less than a full right of ownership. The right of use is restricted to that in the original grant of easement, though parties often consult Sacramento real estate attorneys regarding what that right really is. In the case of a grant of a “general” easement the courts may look to the parties’ original intent, plus the historic use of the easement. However, in a recent decision, the plaintiff discovered that the easement he had granted was not general; instead, the language was clear enough to interpret, and in addition the court recognized that it could allow for the normal future development of the property.

In James Zissler v. Patrick Saville, a property owner in Montecito granted an easement to a neighbor for access to the rear of neighbor’s property. The grantor claims that he intended the easement be used sparingly and infrequently, and not for construction access. He also intended that no “‘heavy vehicles’ ” would be allowed on the easement. By “heavy,” he meant “‘anything much bigger than a pickup truck.’ ” It was only used for the gardener’s access to maintain the property. Both parties sold their lots, and the plaintiff bought from the grantor. The defendant paid $4.7 million, and intended to develop the property, which required paving the easement and construction access. Plaintiff filed this action claiming that defendant had a General Easement, and as such its use was limited by the intent of the parties and its actual historic use.

LANGUAGE OF EASEMENT

Co owners of real property in California are entitled to bring an action for partition of the property, in which the property is either divided between the owners or sold and the proceeds split. The split goes by percentage of ownership interest – two equal coowners get 50% each. However, they are each entitled to an accounting for charges and credits upon their respective interests. Such items as improvements or payment of taxes are included in the calculation. In a decision out of the Third District Court of Appeal, the court clarified that an owner may be credited for what their predecessor in interest had done. Thus, when the father who was a co-owner who made improvements and then conveyed his interest to his daughter, she got credit for his improvements. However, she entered the property as a tenant, and the lease was not terminated when she became an owner. The improvements she made herself were governed by her lease, and she did not get credit in the partition.

In Wallace v. Daley the Third District Court of Appeal faced a partition of property in Arbuckle. The plaintiff started as a tenant; her father was a co-owner with the defendant. The property included an almond orchard, house, and outbuildings. When the plaintiff moved in the house was infested with rats; the septic tank overflowed, and sewage flowed over the ground; the back porch of the house had rotted to the ground from termite damage the roof of the bunkhouse had caved in, the barn was “totally useless.”

When his daughter moved in, she and her father laid a new foundation and built a new bathroom. A septic tank was added, the electrical wiring was renovated, and the burned-out barn and the bunkhouse were removed. The barn was replaced with a concrete and metal building, the chimney and well were repaired and the roof of the house was replaced. During plaintiff’s tenancy, a horse barn and corrals were built and the tank house was renovated.

A common belief is that to claim adverse possession of real property, all one has to do is pay five years of overdue property tax, and take possession of the property. Parties trying to establish adverse possession in California must prove several elements: (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner’s title. (3) The holder must claim the property as his own under either color of title or claim of right. (4) Possession must be continuous and uninterrupted for five years. (5) The holder must pay all the taxes levied and assessed upon the property during the period. This last element is seldom the focus of court decisions, but in a recent decision the claimant was disappointed to learn that a change in the law requires timely payment of assessed property taxes.

In McLear-Gary v. Emrys Scott, McLear-Gary claimed an easement along a logging skid trail. Emrys Scott replaced an old wooden gate with a metal gate across the easement route and kept the gate locked, blocking McLear-Gary from accessing the easement.

The trial court found that McLear-Gary had established an “exclusively pedestrian” prescriptive and implied easement over the properties belonging to the defendants, the court concluded this easement was extinguished by adverse possession when Emrys Scott, acting for the benefit of the common interests of his cotenants, locked and maintained the locked gate (not always hostile notice of adverse possession!) across the easement route and otherwise met the requirements for the affirmative defense.

A court may create an “equitable easement”, on equitable grounds, even though the user is not entitled to an easement on one of the more traditional grounds. The judge balances the rights of the various parties to achieve an equitable solution. Generally, the courts apply a three-part test to determine if such an easement should be legally granted. In most cases there is an existing use, and either one landowner sues to stop the use (they see it as a trespass), or the user sues to legally establish the easement. However, in a recent decision out of Ventura County, the court granted an equitable easement where there had been no preexisting use.

In Hinrichs v. Melton, Hinrichs inherited two adjoining parcels. He used to live in a house on the southern lot, but had lived in Alaska for the past 20 years. He conveyed the southern property to Asquith, which left the northern parcel landlocked – it had no legal access from anywhere. The trial court granted the plaintiff an easement by necessity over the Asquinth parcel, up to the Melton property. Beginning at the Melton property, the court granted an equitable easement under the doctrine of balancing the hardships.

The Equitable Easement