Easements “run” with the land, but do they run with the pieces of land?

[Ian Wilson]

Easements “run” with the land, but do they run with the pieces of land?

I have searched for cases that fit the facts of the case or the intent of the parties involved and have come up with nothing. And this is a real case.

I turn to the “Collective” for your thoughts.


Scenario:

A block created in the 1930’s. It is bounded on the north by A Street and on the West by 1st Street.

The three parcels in our cast if characters are Parcels A, B & C.

A has a 60’ frontage on 1st Street and 120’ of frontage along A Street. It is the corner lot.

B also has 60’ of frontage on 1st Street and also extends 120’ to the east.

C has 60’ of frontage on A Street and is 120’ deep. The southwest corner of C is also the southeast corner of B.


Between 1940 and 1941, the owner of A & B puts up a building on A; 60’ butted up against the right-of-way lines on both 1st Street and A Street. The Owner of A & B also puts up a 40’ x 80’ building on B, butting up against 1st Street and leaving the southerly 20’ of B as a driveway to access the rear of A & B for parking and access to A Street. The owner of C builds a 60’ wide building that extends 80’ to the south. These lots are in town and these buildings are commercial.

In 1942, the owners of both buildings set up an agreement with the owner of A & B granting driveway and parking to the owner of C over the easterly 40’ of A & B. In the same document, C grants access and parking rights over the southerly 40’ of C to the owner of A & B.

By 1956, the owner of A & B has sold the parcels to different owners and has sold the westerly 40 of A & B to the new owner of C. The owner of C expands the building to the west by 20’. The new owners of the parcels create a new agreement, offering up the driveway along the south side of B as a “non-exclusive easement for drive way purposes”. The now 20’ strip behind the two buildings along 1st Street, now belonging to the owner of C, is included in the agreement.

The 1956 agreement refers to the agreement in 1942. It even points out that the owners of the parcel and even the parcels may change but the current owners are “desirous of establishing the driveways and parking”.

Fast forward to the present.

Things have changed; lot lines have been adjusted; buildings have been razed and new ones put up. The building at the corner has been replaced with a 60’ x 60’ that now houses a very successful high-end pizza restaurant with an enormous delivery business (fact significant to the story). The building to the south has been renovated and is now a very smart looking dress shop. The building along A Street is now a grocery store.

My client has purchased a number of lots in the block, but has not acquired the two parcels along 1st Street. Said client is in the process of filing a Final Map which will combine all of the parcels surrounding these two corner parcels. The idea is to construct a multi-use project with commercial/retail on the ground floor; parking on the second floor and residential on the upper three floors.

Said client wants to stop the pizza business from having access to the 20’ wide strip of land and prevent them from using this area as their staging area for loading vehicles delivering pizzas. Apparently the amount of pizza delivery traffic is so significant that my clients are worried that it will have a negative effect on their project.

So…
Do the agreements continue, even with the reconfigured parcel shapes?

How about the old parking area at the rear of C? Is that still in play?

In short, do the agreements attach to the pieces of the original parcels or does it extinguish when the parcels are broken up?

Does anyone have any references of cases that support your answers?

Thanks for anything you can add!

[Warren Smith]

Ian,

See if Civil Code section 807 applies here. The idea is that the same purpose exists for the original grant - but it cannot be substantially expanded. It's a finding of fact whether increased traffic is an unacceptable burden. One can search by topic for cases addressing this issue and see if this factual scenario matches the criteria laid out by the courts. Dave K. may be the quickest on the draw here ...

[Warren Smith]

Leggio v. Haggerty, 231 Cal. App. 2d 873 (1965) is an instructive case. It is about a waterline easement, but has many elements relative to reconfiguration. One of the pitfalls in these situations is the doctrine of merger, should parcels become owned by the same entity. Unless the easement is specifically reserved upon a later sale, it becomes extinguished.

[dedkad]

As long as the language in the easement states that it runs with the land and there has been no action to extinguish it, then the easement should still exist no matter how many times that lot is reconfigured or subdivided. However, as Warren said, whether or not you have the right to increase usage of that easement beyond its original use and intent is questionable and probably a matter for the courts. But does your client have sufficient documentation to prove that the pizza business has a greater impact on that easement than however it was used way back in 1956?

[E_Page]

Something got lost in the dimensions as I was trying to track this graphically on paper. No mention of a building placed on or pre-existing on Parcel C, but as the scenario progresses, it appears that there was a building that had it's westerly edge on or near west line of Parcel C and left the S'ly 40' open for the 1942 parking & access agreement for Par. A & Par. B. Next, Par. C gets fee title to the W'ly 40' (shouldn't that the the E'ly?) of Par. A & Par. B (previously area of parking & access esmt for Par. C per 1942 agmt, if it is the E'ly 40'), and building formerly abutting the old W'ly boundary of Par C is expanded 20' into this area, formerly of Par A & Par C.

So if I accounted correctly for a presumed typo and filled in the gaps with correct assumptions, the current configuration is that Par A is 40' x 80' with a new building (Pizza shop) of the same size & location as the old building, occupying the W'ly 60' of the parcel, and the E'ly 40' being driveway and parking.

Par B is 40'x80' with the same building as was there in 1942 (renovated with Dress shop) occupying the N'ly 40' of the parcel, leaving the S'ly 20' being driveway.

Parcel C is 80' wide fronting A street and 120' deep with a building (Grocery store) that has an exterior footprint with it's westerly wall 20' East of the present W'ly boundary of Par C (20' W'ly of the old w'ly boundary of Par C), the southerly wall such that it leaves open the S'ly 40' of Par C, and occupying some portion of the N'ly 80' of old Par C.

Your client now owns Parcel C and several other parcels to the west and/or South and is in the process of "a multi-use project with commercial/retail"
.
Correct so far?

Assuming I am...

In what order were the conveyances of the portions of A & B to C, and the remaining portions of A & B? How were they accomplished?

No, nevermind. That doesn't matter because the parcels were in their present configurations by the time the agreement for the S'ly 20' of B and W'ly 20' of C as a common driveway easement was executed. So the question that addresses your client's concern is whether the present Pizza business is placing an unintended burden on this common driveway? What manner of businesses were operating on the Parcels in 1956 when the agreement was made? Were there any restrictions in that agreement as to future use?

Was the grocery store on C operating at the time of the agreement or did it come in later?

From the facts presented so far, it doesn't seem like there is anything that would negate A's use of the 20' "L" shaped strip over the S'ly 20' of B and W'ly 20' of C unless the nature of the business occupying A in 1956 was such that they didn't make or receive deliveries and received few customers/clients at the place of business. A grocery store would arguably produce as much or more traffic, although probably in a more uniform distribution over all business hours.

Based on this limited set of facts, I think it would be a difficult battle to extinguish the Pizza shop's access rights over that strip.

If the question is more about the parking and access rights over the S'ly 40' of C, there would seem to be a far better argument for that in that even if it's not explicitly stated in the agreement, there's a pretty good argument that it was intended to supersede the 1942 parking and access agreement.

Unless there are some other important facts not disclosed here, in your place, I would advise my clients to ignore or work around the Pizza shop activities as a larger multi-use development is likely to burden all ways of access to a greater extent than the Pizza shop currently is. If your clients choose to start a war among neighbors over the Pizza traffic, they may find their weapon of first choice being used against them and used with greater effect.

[Dave Karoly, PLS]

I've got Miller & Starr Chapter 15-Easements plus the outline. It's 255 pages. A lot of it deals with unwritten easements so those aren't applicable meaning the actual reading isn't the whole thing. I can't post it here due to copyright but I'll look through it.

[Dave Karoly, PLS]

Okay I made a sketch to understand better. I'm assuming westerly should be easterly in that one spot as pointed out by Evan.
1. I think the 40' easement on the back of A&B was extinguished when C acquired the land because it benefited C so the reason for the easement disappeared.
2. Can an easement arise on the new C to access the easement at the back of C? I don't think so because the policy of implied easements has to do with not land locking fee parcels, not easements. So the old easement behind A&B disappears making the easement behind C inaccessible. If B&C intended to keep the easement they could've reserved it. On the other hand, if C allowed continued use that may change the answer.
3. In 1956 the parties exchanged 20' access easements presumably without parking. 20' is consistent with a 2 way driveway only (can't block with parked vehicles).
4. I'm unsure whether 3. could resurrect the easement for parking behind C but the mention of parking in the 1956 agreement seems be an acknowledgment of the old easement at least.

This situation seems to be in need of deal making. I don't think the pizza guys can park in the 20' easement but they may have the right to park behind the grocery store. Somehow improve the parking for the pizza wagons in exchange for q/c deeds extinguishing the easements?

I would look for cites but my Grandson, the boy wonder, wants to go to the park now. :-)

[Dave Karoly, PLS]

Wow, easements are complicated. Even extinguishment by merger is complicated.

I was wrong about the policy of implied easements. They arise out of the implied intentions of the grantors. Usually they are implied in favor of the grantee but can be implied in favor of the grantor. Use prior to the grant of the A&B strip to C could imply an easement in favor of A&B but the courts are reluctant to imply easements in favor of grantors.

I think the pizza parlor has a steeper road to proof they can use the easement to stage delivery vehicles than the developer has proving they can't but I don't have a specific case I can point to. A full analysis would take multiple case cites and if the pizza guy resists and you have to litigate would it be worth the time, expense, and risk of losing?

[Ian Wilson]

Somehow, I missed hitting the submit button on this yesterday.

Warren: Great cites. Unfortunately, they don’t line up well enough with the facts in this case, but they do provide some insight into the disposition of easements in the long run.

Deadkad: typically, easements do run with the land. The issue here is whether they run with the land as it is chunked up and how much runs where and how much gets extinguished.

Evan: Your final paragraph sums up my gut feeling from the beginning. However, I was asked to see if there was a way for my client to move forward and bar the pizza parlor from using the strip as a “staging area” for delivery loading.

David: Aren’t easements wonderful things? A few years ago, I did a few surveys for MSR. I suggested that we could negotiate portions of my fees for certain Chapters from MSR Real Estate. Unfortunately, the division of MSR that produces the books is a different one and there was no mechanism to do a direct swap. C’est la guerre, n’est pas? BTW – I am envious. How many Chapters do you own and which ones? Did you buy directly from MSR or find a deal somewhere? If the later, hook a brother up, please!

Thanks for the responses. I was hoping that someone would come up with a case reference that fit better and would provide great insight.

[LA Stevens]

Dave's recent paper suggested reading Miller & Starr California Real Estate, Chapter 8 Deeds,
Chapter 15 Easements, Chapter 17 Adjoining Land Owners, and Chapter 18 Adverse Possession to
start. Miller and Starr California Real Estate 4th V3 & V8 Binders and Contents cover those area's referenced above. Each volume is presently $154 and my recent order came to $334.98 with tax and Free Shipping.

It would be nice to get this electronically.

[E_Page]

Sorry, haven't come up with a case for you, just a little more stream of consciousness thinking.

They may have some success at limiting the Pizza shop from using the 20' strip as a staging area. I guess that depends upon how long the vehicles remain stationary for that staging and how broadly some ruling authority would interpret the use of a driveway and access easement.

Isn't a common use for a driveway to remain parked for a short period while loading or unloading passengers or goods?

I still see the relative difficulties for the Pizza shop's use vs your client's potential use to be in the Pizza shop's favor. They've had an ongoing use for some time. The agreements would appear to have been contemplated with one business on each of the 3 parcels. The pizza shop continues to be one business. Your client's proposed development is for several businesses and potentially would open use of the 20' easement up to occupants of more than just whatever ends up on C alone. Even if they are not planning any specific access via that easement, additional development would arguably put additional burden on local public side streets. It may not be enough to stop your project, but might end up being enough trouble to address that they will have wished they left the pizza shop alone.

I agree with Dave as to whether the Pizza and Dress shops would have any rights remaining to the S 40' of C. Use or non-use since may be the most important factor in that the subsequent acts of the parties involved would indicate whether or not they had intended the 1956 agreement to extinguish all of the 1942 easements, and whether there would be an implied 40' x 40' to access the S 40' of the old C.

[Dave Karoly, PLS]

Ian-see your gmail.

[Warren Smith]

Here's an interesting dictum at the end of a case dealing with a prescriptive access easement. It's pretty flowery language, even for 1962:

Le Deit v Ehlert, 205 Cal.App.2d 154 (1962)

“Recapitulating as to the propriety of the presumption that open and notorious use begets adverseness, we have concluded that the presumption is unfortunate. The whole field of easements is fertile, and indeed, overgrown, with diverse and contrasting presumptions. To make one's way through this bramble-bush is no less difficult than to break through the chaparral of the Mt. Hamilton Range. The wisdom of O'Banion in uprooting at least one such presumption is further confirmed by the continuing conflict in other jurisdictions in announcing completely contradictory presumptions as to the effect of open and continuous use. (See 1954 Annual Survey of American Law, p. 606.) Finally, as the semiurbanization of the countryside blurs the old lines between city and country, the differences between "open" and "enclosed" land become harder to ascertain, and presumptions as to "open," as opposed to "enclosed" land, harder to apply. Thus, even though we conclude here that the instruction on the presumption did not inflict prejudice, we opine that the future role of the presumption must be a narrow and vanishing one.”