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California Easements and Boundaries: Law and Litigation

Succeed with this incomparable resource for drafting or litigating easements and related rights.

“I do not often deal with easement problems, and when I do, I am usually surprised by how unsatisfactorily the law is laid out. But no more! Professor French’s presentation in Chapter 1, ‘The Basics,’ is spectacular in its organization and clarity.”
Jim Moses, Banks & Watson, Sacramento

Succeed with this incomparable resource for drafting or litigating easements and related rights.

  • Fully grasp easement law and The Restatement
  • Review drought relief laws' effects on water rights
  • Litigate equitable easements and adjacent property rights
  • Draft notices under Good Neighbor Fence Act
  • Master the governing law of road and railroad easements
  • Prepare development, conservation, and utility easements
  • Effectively resolve boundary and neighbor disputes
  • Confidently advise on the role of title insurance
  • Apply public trust doctrine to limit easement rights
  • Understand mineral, water, and airport easements
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“I do not often deal with easement problems, and when I do, I am usually surprised by how unsatisfactorily the law is laid out. But no more! Professor French’s presentation in Chapter 1, ‘The Basics,’ is spectacular in its organization and clarity.”
Jim Moses, Banks & Watson, Sacramento

Succeed with this incomparable resource for drafting or litigating easements and related rights.

  • Fully grasp easement law and The Restatement
  • Review drought relief laws' effects on water rights
  • Litigate equitable easements and adjacent property rights
  • Draft notices under Good Neighbor Fence Act
  • Master the governing law of road and railroad easements
  • Prepare development, conservation, and utility easements
  • Effectively resolve boundary and neighbor disputes
  • Confidently advise on the role of title insurance
  • Apply public trust doctrine to limit easement rights
  • Understand mineral, water, and airport easements

1

Basic Easement Law: California and the Restatement (Third) of Property: Servitudes

Susan F. French

  • I. INTRODUCTION
    • A. Easement Defined 1.1
    • B. Define and Distinguish: Affirmative Easements, Profits à Prendre, Licenses, Franchises, Leases, and Covenants 1.2
      • 1. Affirmative Easements 1.3
      • 2. Profits à Prendre 1.4
      • 3. Licenses and Franchises 1.5
      • 4. Leases 1.6
      • 5. Covenants 1.7
    • C. Negative Easements and Restrictive Covenants: Functionally Identical But Historically Different 1.8
    • D. Conservation Easements 1.9
    • E. Easement Terminology 1.10
    • F. Sources of California Easement Law 1.11
    • G. Uses of Easements and Profits 1.12
  • II. CREATION OF EASEMENTS 1.13
    • A. Persons Who May Create Easements
      • 1. Creator Must Own or Have Power Over Servient Estate 1.14
      • 2. All Co-owners of Servient Estate Must Join to Create Easement 1.15
      • 3. An Easement May Be Created to Benefit Any Estate in Land or Another Easement 1.16
      • 4. Servient Estate Must Be Land 1.17
      • 5. An Easement May Be Created to Benefit a Third Party 1.18
      • 6. Restrictions on Creation by Owner of Dominant and Servient Estates 1.19
    • B. Methods of Creating Easements
      • 1. Express Creation by Written Instrument 1.20
      • 2. Oral Grant of Easement 1.21
      • 3. Estoppel 1.22
      • 4. Implication 1.23
        • a. On Basis of Prior Use 1.24
          • (1) Use Must Be Apparent or Visible 1.25
          • (2) Underground Utilities 1.26
        • b. On Basis of Reference to a Map or Boundary 1.27
        • c. On Basis of Necessity 1.28
          • (1) Common Ownership 1.29
          • (2) Degree of Necessity 1.30
          • (3) Statutory Easement by Necessity for Utilities 1.31
      • 5. Prescription 1.32
        • a. Prescriptive Use: Hostile and Adverse Use 1.33
        • b. Open or Notorious 1.34
        • c. Continued and Uninterrupted 1.35
        • d. No Prescription Against the Public 1.36
        • e. Differences Between Adverse Use and Adverse Possession 1.37
          • (1) Payment of Taxes 1.38
          • (2) Exclusive Use or Possession 1.39
        • f. Prescriptive Use: Intended But Imperfectly Created Easement 1.40
        • g. Preventing Prescription by Recording or Posting Notice 1.41
      • 6. Dedication and Implied Dedication 1.42
      • 7. Condemnation and Inverse Condemnation 1.43
      • 8. Equitable Easements and Balancing Hardships: Judicial Refusal to Enjoin Repeated Trespass 1.44
  • III. INTERPRETATION OF EASEMENTS 1.45
    • A. Duration 1.46
    • B. Determining Whether Benefit Is Appurtenant, in Gross, or Personal 1.47
    • C. Transferability of Easements 1.48
    • D. Physical Scope: Location, Relocation, and Dimensions
      • 1. Initial Location 1.49
      • 2. Relocation 1.50
      • 3. Dimensions 1.51
    • E. Scope of Use; Rights of Servient Owner and Easement Holder 1.52
    • F. Property That May Be Served by Appurtenant Easement 1.53
    • G. Repair and Maintenance 1.54
  • IV. SUCCESSION TO EASEMENT BENEFITS AND BURDENS 1.55
    • A. Burdens 1.56
    • B. Appurtenant Benefits 1.57
    • C. Subdivision of Property Burdened or Benefited by Easement 1.58
      • 1. Subdivision of Servient Estate 1.59
      • 2. Subdivision of Dominant Estate 1.60
    • D. Benefits in Gross
      • 1. Assignment of Entire Benefits 1.61
      • 2. Division of Benefits in Gross 1.62
  • V. MODIFICATION AND TERMINATION OF EASEMENTS 1.63
    • A. Voluntary Modification or Termination 1.64
      • 1. Release and Abandonment 1.65
      • 2. Merger 1.66
    • B. Involuntary Modification and Termination
      • 1. Easement by Necessity 1.67
      • 2. Estoppel 1.68
      • 3. Prescription 1.69
      • 4. Condemnation 1.70
      • 5. Recording Act 1.71
    • C. Judicial Modification and Termination
      • 1. Changed Conditions; Frustration of Purpose
        • a. Easements in General 1.72
        • b. Conservation Easements 1.73
      • 2. Benefits in Gross 1.74
  • VI. ACTIONS TO ESTABLISH AND ENFORCE EASEMENTS
    • A. Actions to Establish and Determine Scope of Easements 1.75
    • B. Actions for Excessive and Unauthorized Uses of Easements 1.76
    • C. Actions for Unreasonable Interference With Easement 1.77

2

Development Easements

Neal A. Parish

David L. Preiss

Carolyn J. Stein

Stephen Stwora-Hail

  • I. INTRODUCTION 2.1
    • A. Historical Overview 2.2
      • 1. Statutory Law 2.3
      • 2. Common Law 2.4
    • B. Modern Imposition of Restrictions and Obligations 2.5
  • II. CREATION OF DEVELOPMENT EASEMENTS
    • A. Government-Required Easements 2.6
    • B. Authority for Government-Required Easements
      • 1. Constitutional Authority
        • a. California Constitution and the Police Power 2.7
        • b. Constitutional Limitations 2.8
      • 2. Statutory Power
        • a. Subdivision Map Act
          • (1) Local Development Conditions 2.9
          • (2) Tentative and Final Maps 2.10
        • b. Planning and Zoning Laws 2.11
      • 3. Agreements and Offers by Developer
        • a. Development Agreements 2.12
        • b. Offer of Dedication 2.13
      • 4. Conditions of Approval 2.14
    • C. Private Easements 2.15
  • III. SCOPE OF DEVELOPMENT EASEMENTS 2.16
    • A. Use 2.17
    • B. Who Uses; Exclusivity 2.18
    • C. Location and Relocation 2.19
    • D. Dimensions 2.20
    • E. Duration 2.21
  • IV. PARTICULAR TYPES OF DEVELOPMENT EASEMENTS
    • A. Streets, Gutters, Curbs, Sidewalks, and Lighting 2.22
    • B. Utilities 2.23
    • C. Landscaping 2.24
    • D. Ingress and Egress; Emergency Vehicle Access
      • 1. Importance of Ingress and Egress 2.25
      • 2. Common Areas 2.26
      • 3. Exclusive-Use Common Areas in Common Interest Developments 2.27
      • 4. Emergency Vehicle Access 2.28
      • 5. Access to Recreational Areas 2.28A
    • E. Parking 2.29
      • 1. Off-Site Parking 2.30
      • 2. Reciprocal Parking Rights 2.31
      • 3. Exclusive Easements 2.32
    • F. Stormwater Runoff, Drainage, and Retention 2.33
    • G. Signage 2.34
    • H. Construction 2.35
    • I. Side Yards and Setbacks 2.36
    • J. Negative Easements 2.37
    • K. Avigation Easements 2.37A
  • V. LIABILITY ISSUES 2.38
    • A. Public and Private Streets
      • 1. Responsibility for Maintenance, Repair, and Replacement 2.39
      • 2. Government Liability to Third Parties 2.40
      • 3. Developer Liability to Third Parties 2.41
      • 4. Government's Rights With Respect to Encroachments 2.42
      • 5. Government's Liability to Abutting Owners 2.43
    • B. Sidewalks and Parkways
      • 1. Responsibility for Maintenance, Repair, and Replacement 2.44
      • 2. Liability to Third Parties 2.45
    • C. Utilities
      • 1. Utility's Liability to Third Parties 2.46
      • 2. Developer's Liability for Design or Construction Defects 2.47
    • D. Other Development Easements
      • 1. Responsibility for Maintenance, Repair, and Replacement 2.48
      • 2. Government's Liability to Third Parties for Torts and Nuisance 2.49
      • 3. Developer's Liability to Third Parties 2.50
      • 4. Developer's Liability to Public Agency 2.51
      • 5. Easement Holder's Liability to Owner of Underlying Fee 2.52
      • 6. Fee Owner's Liability to Easement Holder 2.53
  • VI. COVENANTS RUNNING WITH THE LAND 2.54
    • A. Statutory Authority 2.55
    • B. Provisions in Grant of Easement
      • 1. Consideration; Effect of Easement on Property Taxes and Assessments 2.56
      • 2. Construction, Maintenance, Repair, and Replacement
        • a. Responsibility and Requirements 2.57
        • b. Allocation of Costs 2.58
      • 3. Indemnity 2.59
      • 4. Insurance 2.60
      • 5. Damage and Destruction 2.61
      • 6. Condemnation 2.62
      • 7. Default and Remedies 2.63
      • 8. Hazardous Materials 2.64
      • 9. Miscellaneous Provisions 2.65
        • a. Termination of Liability 2.66
        • b. Notices 2.67
        • c. Term and Termination; Amendments 2.68
  • VII. FORMS
    • A. Reciprocal Easement Agreement
      • 1. Form: Reciprocal Easement Agreement 2.69
      • 2. Form: Table of Exhibits (Reciprocal Easement) 2.70
    • B. Utility and Access Easement Agreement
      • 1. Form: Utility and Access Easement Agreement 2.71
      • 2. Form: Table of Exhibits (Utility and Access Easement) 2.72
    • C. Slope and Drainage Easement Agreement
      • 1. Form: Slope and Drainage Easement Agreement 2.73
      • 2. Form: Table of Exhibits (Slope and Drainage Easement) 2.74

3

Miscellaneous Easements

Edward S. Rusky

Peter Brian Bothel

Laura S. Lowe

  • I. SCOPE OF CHAPTER 3.1
  • II. EASEMENTS TO ACCESS OR EXTRACT OIL, GAS, OR OTHER MINERALS
    • A. Ownership of Oil, Gas, and Other Minerals 3.2
      • 1. Separation of Surface and Subsurface Ownership 3.3
      • 2. No Separation of Surface and Subsurface Ownership 3.4
    • B. Right of Surface Entry 3.5
    • C. Mineral Leases 3.6
    • D. Title Insurance Issues 3.7
  • III. EASEMENTS RELATING TO WATER RIGHTS
    • A. Types of Water Rights 3.8
    • B. Ownership of Water in California 3.9
      • 1. Riparian and Overlying Rights 3.10
      • 2. Appropriative Rights Doctrine 3.11
    • C. Statutory Authority
      • 1. Right to Take Water as Easement or Profit 3.12
      • 2. Statutory Appropriative Water Rights 3.13
        • a. Monitoring and Enforcing Appropriative and Other Rights 3.13A
        • b. Drought Relief Provisions 3.13B
      • 3. Statutory Groundwater Management 3.13C
        • a. Groundwater Maintenance 3.13D
        • b. Coordination With Land Use Planning 3.13E
        • c. State Intervention to Manage Groundwater Basin 3.13F
        • d. Action to Determine Rights to Extract Groundwater 3.13G
      • 4. Authorizing New Water Sources 3.13H
    • D. Prescriptive Water Rights 3.14
    • E. Secondary Easements 3.15
    • F. Title Insurance Issues 3.16
  • IV. EASEMENTS RELATING TO TIMBER
    • A. Ownership of Timber in California 3.17
    • B. Secondary Easements Supporting Right to Remove Timber 3.18
    • C. Title Insurance Issues 3.19
  • V. PUBLIC TRUST; TIDELANDS AND NAVIGABLE WATERS
    • A. Trust Purpose and Scope 3.20
    • B. Legal Development of Public Trust Doctrine
      • 1. State Ownership 3.21
      • 2. State Jurisdiction Over Public Trust Lands; Preemption 3.22
      • 3. Permit Conditions May Implement Public Trust Doctrine 3.22A
      • 4. Land Exchanges May Implement Public Trust Doctrine 3.22B
    • C. Equitable Estoppel Applicable to Public Trust 3.23
    • D. Public Trust Interest in Private Lands 3.24
    • E. Private Landowners' Littoral Rights 3.24A
  • VI. AVIGATION EASEMENTS
    • A. Easement in Gross 3.25
      • 1. Purpose of Avigation Easement 3.25A
      • 2. Noise-Sensitive Projects 3.25B
    • B. Grantors of Avigation Easements 3.26
    • C. Easement by Condemnation 3.27
    • D. Easement by Prescription 3.28
    • E. Regulation of Adjacent Property 3.28A

4

Construction-Related Agreements

Richard M. Shapiro

  • I. INTRODUCTION 4.1
    • A. Distinguish Easement, License, Lease 4.2
    • B. Common Issues in Temporary Use Construction Agreements 4.3
  • II. TYPES OF CONSTRUCTION-RELATED TEMPORARY OR PERMANENT USES 4.4
    • A. Access and Site Investigation
      • 1. Preconstruction Access 4.5
      • 2. Form: Access Agreement 4.6
      • 3. Documentation and Monitoring of Adjacent Property
        • a. Inspection; Survey 4.7
        • b. Form Provision: License to Monitor Adjacent Property 4.8
      • 4. Easement Agreements for Public Projects
        • a. Form: Grant of Temporary Construction Easement 4.8A
        • b. Form: Grant of Public Service Easement 4.8B
        • c. Form: Grant of Storm Drain Easement 4.8C
        • d. Form: Grant of Public Pedestrian Access Easement 4.8D
        • e. Form: Grant of Temporary Emergency Vehicle Access Easement 4.8E
      • 5. Subordination Agreements for Public Projects
        • a. Form: Subordination Agreement 4.8F
        • b. Form: Subordination and Waiver Agreement 4.8G
    • B. Staging and Scaffolding 4.9
    • C. Other Airspace Rights 4.10
    • D. Storage 4.11
    • E. Utilities
      • 1. Temporary Utilities 4.12
      • 2. Blanket Easements for Permanent Utilities 4.13
    • F. Shoring and Tiebacks 4.14
      • 1. Issues Related Specifically to Tiebacks and Underpinning 4.15
      • 2. Form: Underpinning and Tieback Agreement 4.16
    • G. Railroad Right-of-Way Encroachment 4.17
    • H. Public Property Encroachment
      • 1. California Law 4.18
      • 2. Federal Law 4.18A
  • III. LIABILITY OF EXCAVATORS
    • A. Owner's Liability at Common Law 4.19
    • B. Owner's Liability for Its Contractor's Activities 4.20
    • C. Statutory Liability Under Civil Code §832 4.21
      • 1. Advance Notice Required 4.22
      • 2. Requirements for Excavations Deeper Than Nine Feet 4.23
      • 3. Form: Notice of Intended Excavation 4.24
  • IV. COMMON ISSUES IN DRAFTING CONSTRUCTION-RELATED AGREEMENTS
    • A. Description of Activity Permitted 4.25
    • B. Parties Related to the Property Burdened 4.26
    • C. Parties Related to the Property Benefited 4.27
    • D. Issues Related to Affected Property
      • 1. Property Description 4.28
      • 2. Property Condition 4.29
    • E. Term 4.30
    • F. Indemnity 4.31
    • G. Waiver 4.32
    • H. Insurance
      • 1. Liability Insurance 4.33
      • 2. Additional Insureds 4.34
      • 3. Construction Bonds 4.34A
  • V. REMEDIES FOR WRONGFUL OCCUPANCY
    • A. Encroachments 4.35
      • 1. Remedies for Encroachment 4.36
      • 2. Statute of Limitations 4.37
    • B. Remedies for Trespass 4.38
    • C. Remedies for Nuisance 4.39
  • VI. REMEDIES IN LIEU OF ACCESS OR USE AGREEMENT
    • A. Private Eminent Domain 4.40
    • B. Private Necessity 4.41

5

Utility Easements and Access Rights

Andrew K. Rauch

Jerome F. Candelaria

John Davidson Thomas

Paul A. Werner III

  • I. OVERHEAD EASEMENTS
    • A. Nature of Easement; Methods of Creation 5.1
    • B. Rights of Easement Holder 5.2
    • C. Rights of Servient Owner 5.3
    • D. Limits on Rights to Sue for Electromagnetic Fields
      • 1. Nature of Claim 5.4
      • 2. Statutory Limits 5.5
      • 3. Personal Injury Litigation 5.6
  • II. SUBSURFACE EASEMENTS
    • A. Nature of Easement; Methods of Creation 5.7
    • B. Rights of Easement Holder 5.8
    • C. Rights of Servient Owner 5.9
  • III. UTILITY EASEMENTS: NATURE AND SCOPE 5.10
  • IV. USE OF PUBLIC STREETS UNDER FRANCHISES FOR UTILITY SERVICES
    • A. Franchise Rights Granted by Cities or Counties 5.11
    • B. Franchise Rights Granted by State to Cities or Counties 5.11A
    • C. Franchise Rights for Telecommunication Companies 5.12
    • D. Scope of Franchise Rights; Relocation Obligations 5.13
  • V. RIGHTS OF PRIVATE PARTIES TO OBTAIN UTILITY EASEMENT 5.14
  • VI. RIGHTS-OF-WAY, FRANCHISES, AND EASEMENTS FOR CABLE TELEVISION SYSTEMS
    • A. Nature and Use 5.15
    • B. California Governing Law 5.16
      • 1. State Law Regarding Rights-of-Way, Franchises, and Easements 5.17
      • 2. State Pole-Attachment Law 5.18
    • C. Federal Law Governing Cable Operators 5.19
      • 1. Federal Cable Franchise Law 5.20
      • 2. Federal Pole-Attachment Law 5.21
        • a. Establishment of Regulation by State—Federal "Reverse Preemption" 5.22
        • b. California Poles, Conduits, and Rights-of-Way Regulated by CPUC 5.23
        • c. Substantive Areas of Regulation and Regulatory Enforcement: Rates, Terms, and Conditions 5.24
  • VII. DRAFTING UTILITY EASEMENTS; ADDITIONAL CLAUSES 5.25
  • VIII. FORMS
    • A. Form: Utility Distribution Easement Grant Deed 5.26
    • B. Form: Joint Use and Easement Relocation Agreement 5.27
    • C. Form: Drainage and Construction Easement Agreement 5.28
    • D. Form: Utility Easement Agreement for Underground Transmission of Electricity 5.29

6

Conservation Easements

James L. Pierce

Jessica Rader

  • I. OVERVIEW
    • A. Conservation and Greenway Easements Defined 6.1
    • B. Checklist: Negotiating and Drafting Conservation Easements 6.1A
  • II. CHARACTERISTIC VALUES OF CONSERVATION AND GREENWAY EASEMENTS 6.2
    • A. Ecological Values 6.3
    • B. Open-Space Values 6.4
    • C. Historic Values and Tribal Cultural Resources 6.5
    • D. Agricultural Use Values 6.6
      • 1. Scope of Agricultural Conservation Easement 6.7
      • 2. Form Provision: Changed Economic Circumstances 6.8
    • E. Farmland Mitigation Values 6.8A
    • F. Conversion From Agricultural Use to Solar Energy Use 6.8B
    • G. Particular Characteristics of Greenway Easements 6.8C
  • III. PARTIES TO CONSERVATION EASEMENT
    • A. Property Owner 6.9
    • B. Easement Holder 6.10
    • C. Meeting Grantee's Criteria for Acceptance 6.11
    • D. Educating Property Owner 6.12
    • E. Subsequent Grantees 6.13
  • IV. TAX BENEFITS OF CONSERVATION EASEMENTS
    • A. Types of Available Tax Benefits 6.14
    • B. Federal Tax Benefits
      • 1. Income Tax 6.15
        • a. Deductibility Requirements for Donated Open-Space Easements 6.16
        • b. Significant Public Benefit of Open-Space Donation 6.17
        • c. Form Provision: Public Policy Recitals 6.18
      • 2. Estate Tax 6.19
    • C. State and Local Tax Benefits
      • 1. State Income Tax 6.20
      • 2. Property Tax 6.21
  • V. ACQUISITION ISSUES
    • A. Baseline Data 6.22
      • 1. Need for Baseline Data 6.23
      • 2. Basic Legal Requirements 6.24
      • 3. Written Text 6.25
      • 4. Photographs 6.26
    • B. Appraisal Requirement
      • 1. Establishing Value of Easement 6.27
      • 2. Qualified Appraisals and Appraisers 6.28
    • C. Title Report 6.29
    • D. Subordination 6.30
    • E. Recordation and Notice 6.31
  • VI. MONITORING AND ENFORCING CONSERVATION EASEMENTS
    • A. Clarity in Easement Language 6.32
    • B. Funding Costs of Monitoring and Enforcing the Easement 6.33
    • C. Easement Violations
      • 1. Communication Between the Parties 6.34
      • 2. Alternative Dispute Resolution Versus Litigation 6.35
    • D. Subsequent Landowners 6.36
  • VII. DRAFTING CONSERVATION EASEMENTS 6.37
    • A. Recitals 6.38
    • B. Basic Terms 6.39
    • C. Public Access; Prerequisite to Tax Deductibility 6.40
    • D. Duration
      • 1. Perpetual Grant 6.41
      • 2. Exceptions to Perpetual Grant
        • a. Easement Turned Fee 6.42
        • b. Foreclosure by Nonsubordinated Lender 6.43
        • c. Eminent Domain 6.44
      • 3. Extinguishment of Easement 6.44A
    • E. Option to Purchase Perpetual Easement; Temporary Easement 6.45
    • F. Amending Conservation Easements
      • 1. General Rule Against Amending 6.46
      • 2. Reasons to Amend 6.47
      • 3. How to Amend 6.48
  • VIII. FORM EASEMENT
    • A. Conservation Easement Forms Vary 6.49
    • B. Form: Grant Deed and Conservation Easement and Agreement 6.50

7

Road and Railroad Easements

William H. Lynes

  • I. OVERVIEW
    • A. Public Benefit 7.1
    • B. Easement or Fee Estate? 7.2
  • II. PUBLIC RIGHTS-OF-WAY AND EASEMENTS 7.3
    • A. Creation of Street Easements 7.4
      • 1. Dedication 7.5
        • a. Dedication Law and Contract Law Compared 7.6
        • b. Statutory Dedications; Subdivision Map Act 7.7
          • (1) Express Dedications Under Map Act 7.8
          • (2) Implied Dedications Under Map Act 7.9
          • (3) Issues Arising From Statutory Dedications 7.10
        • c. Common Law Dedications 7.11
        • d. Acceptance of Maintenance Obligation 7.12
      • 2. Condemnation 7.13
      • 3. Purchase and Deed 7.14
      • 4. Statutory Grant on Federal Land 7.15
        • a. RS 2477 Roads 7.16
        • b. Section Line Roads 7.17
      • 5. Less Common Methods of Creation
        • a. Roads Dedicated by Government on Proprietary Property 7.18
        • b. Roads Created by Partition Actions 7.19
    • B. Transfer of Street Easements
      • 1. Relinquishment 7.20
      • 2. Incorporation and Annexation 7.21
    • C. Determination of Easement or Fee 7.22
      • 1. Statutory Restrictions Defining the Acquired Estate 7.23
        • a. Estate or Interest Acquired by Deed 7.24
        • b. Estate or Interest Acquired by Condemnation 7.25
        • c. Estate or Interest Acquired by Dedication 7.26
      • 2. Interpretation of Deeds and Decrees 7.27
    • D. Competing Rights in Street Easements
      • 1. Before Acceptance 7.28
      • 2. After Acceptance and Opening 7.29
      • 3. After Vacating Public Use Easement 7.30
      • 4. Abutter's Rights and Access 7.31
    • E. Scope of Easement: Physical Dimensions and Boundaries 7.32
      • 1. Vertical and Horizontal Dimensions of Easements 7.33
        • a. Height of Easement Above Street Surface 7.34
        • b. Depth of Easement Below Street Surface 7.35
        • c. Width of Easement 7.36
      • 2. Ownership Presumed to Center Line of Street 7.37
        • a. CC §831: Law of Monuments 7.38
        • b. CC §1112: Law of Appurtenances 7.39
        • c. CCP §2077: Rules of Construction 7.40
      • 3. Rebutting Presumption of Ownership to Center Line 7.41
        • a. Use of Metes and Bounds Description; Fee Title Exception 7.42
        • b. Marginal Street Doctrine 7.43
        • c. Tract Maps Excluding Street 7.44
      • 4. Title Insurance Coverage of Adjoining Streets 7.45
    • F. Termination of Street Easements 7.46
      • 1. Nonuse and Adverse Possession 7.47
      • 2. The Vacation Process 7.48
      • 3. Challenges to Vacation 7.49
  • III. RAILROAD RIGHTS-OF-WAY AND EASEMENTS 7.50
    • A. Creation of Railroad Easements 7.51
      • 1. Purchase and Deed 7.52
      • 2. Condemnation 7.53
      • 3. Adverse Possession 7.54
      • 4. Legislative Grant 7.55
        • a. Congressional Grant 7.56
        • b. State Lands of California 7.57
    • B. Transfer of Railroad Easements 7.58
    • C. Determination of Easement or Fee 7.59
      • 1. Title Acquired by Deed 7.60
      • 2. Title Acquired by Condemnation 7.61
      • 3. Interests Acquired by Adverse Use 7.62
      • 4. Title Acquired by Legislative Grant 7.63
    • D. Scope of Railroad Easements: Competing Use Tensions 7.64
      • 1. Rights of Adjoining Landowners in the Railroad Right-of-Way 7.65
      • 2. Railroad Grants of Lesser Rights to Third Parties 7.66
      • 3. Evolution in Uses 7.67
    • E. Scope of the Railroad Easement: Physical Boundaries 7.68
    • F. Termination or Interim Use of Railroad Easements 7.69
      • 1. Government Regulation of Abandonment 7.70
        • a. Rails to Trails; Interim Use 7.71
        • b. Special Rules for the Abandonment of Congressional Grant Rights-of-Way 7.72
      • 2. Termination Under State and Federal Substantive Law 7.73
      • 3. Posttermination Issues 7.74
        • a. Subdivision Map Act 7.75
        • b. Environmental Cleanup Liability 7.76
  • IV. PRIVATE STREET EASEMENTS
    • A. In General 7.77
    • B. Types and Methods of Creation 7.78
    • C. Competing Interests of Dominant and Servient Owners 7.79
    • D. Termination 7.80
  • V. BICYCLE RIGHTS-OF-WAY
    • A. Classes of Bikeways 7.81
    • B. Creation and Design of Bikeways 7.82
    • C. Protecting Persons With Disabilities 7.83

8

Boundary Easements and Neighboring Property Rights

Laurence L. Hummer

Daniel L. Goodkin

David G. Boss

  • I. CHAPTER SCOPE 8.1
  • II. PARTY WALLS 8.2
    • A. History of Party Walls 8.3
    • B. Created by Agreement or by Law 8.4
      • 1. Drafting Express Agreements 8.5
      • 2. Party Wall Rights and Duties Created by Law (Implied Agreements) 8.6
    • C. Extension of Party Wall 8.7
    • D. Interpreting Party Wall Agreements 8.8
    • E. Destruction of Servient Tenement 8.9
    • F. Party Walls in Condominium Projects 8.10
    • G. Form: Party Wall Agreement 8.11
  • III. LATERAL SUPPORT 8.12
    • A. Statutory Law 8.13
    • B. Distinction Between Natural and Artificial Conditions 8.14
    • C. Liability of Upper and Lower Property Owners 8.15
    • D. Tieback Agreements 8.16
    • E. Remedial Action by Public Entity to Avoid Impending Peril 8.17
    • F. Injunctive Relief 8.18
    • G. Rights Under CC §1002 8.19
  • IV. BOUNDARY DISPUTES AND ENCROACHMENTS; FENCES, HEDGES, AND WALLS
    • A. Identifying Boundary Disputes and Encroachments 8.20
    • B. Resolving Boundary and Encroachment Disputes
      • 1. Agreed Boundary Doctrine 8.21
      • 2. Adverse Possession 8.22
      • 3. Prescriptive Easement 8.23
      • 4. Quieting Title 8.23A
      • 5. Doctrine of Relative Hardships
        • a. Equitable Easements 8.24
        • b. Extent of Court's Discretion 8.25
      • 6. Good Faith Improver Statute 8.26
      • 7. Invoking Statute of Limitations 8.27
    • C. Maintenance of Boundary Fences, Hedges, and Walls
      • 1. Good Neighbor Fence Act of 2013 8.28
      • 2. Notice of Intention to Incur Costs for Boundary Fence (Good Neighbor Fence Act) 8.28A
      • 3. Maintenance and Liability Obligations of Easement Holders Distinguished 8.29
      • 4. Boundary Trees 8.30
    • D. Spite Fences: State Law and Local Fence and Hedge Law Ordinances 8.31
  • V. ENCROACHMENT AND LICENSE AGREEMENTS
    • A. Legal Principles 8.32
    • B. Types of Encroachments 8.33
    • C. Examples of Agreements 8.34
    • D. Negotiating and Drafting Encroachment Agreements 8.35
  • VI. NEGOTIATED LOT LINE ADJUSTMENTS
    • A. Coordination Among Property Owners and Public Entities 8.35A
      • 1. Avoiding Liability Under Subdivision Map Act 8.35B
      • 2. Local Agency Approval 8.35C
      • 3. Conservation Areas, Mobilehomes, Manufactured Housing 8.35D
    • B. Other Approvals and Costs
      • 1. Lenders Holding Security Interests 8.35E
      • 2. Survey; Certificate of Compliance 8.35F
    • C. Delivery and Recordation of Documents 8.35G
    • D. Samples of Local Forms
      • 1. Form: Request for Lot Line Adjustment and Certificate of Compliance 8.35H
      • 2. Form: Lot Line Adjustment Application 8.35I
  • VII. NEGATIVE EASEMENTS, CC&R's, AND LOCAL ORDINANCES 8.36
    • A. CC&Rs and Local Ordinances 8.37
    • B. Solar Easements 8.38
  • VIII. EASEMENTS CREATED BY OPERATION OF LAW 8.38A
    • A. Easement by Necessity 8.39
    • B. Easement by Implication 8.40
    • C. Easements by Eminent Domain 8.41
      • 1. For Utilities 8.42
      • 2. For Access to Make Repairs 8.43
    • D. Easements by Implied Dedication 8.43A
  • IX. DRAFTING EASEMENT AND LICENSE AGREEMENTS 8.44
    • A. Historical Background 8.45
    • B. Modern View 8.46
    • C. Drafting Easement Agreements; Recordation 8.47
      • 1. Recitals; Surveys; Drawings 8.48
      • 2. Granting Clause for Appurtenant Easement 8.49
        • a. Exclusive Versus Nonexclusive 8.50
        • b. Scope 8.51
        • c. Easement for Parking 8.52
        • d. Caution Regarding References to "Land" 8.53
      • 3. Duration
        • a. Marketable Record Title Act 8.54
        • b. Covenants Running With the Land 8.55
      • 4. Subordination; Title Insurance 8.56
    • D. Drafting License Agreements 8.57
    • E. Other Provisions of Easement and License Agreements 8.58
    • F. Easement Agreement
      • 1. Form: Title and Introductory Paragraph 8.59
      • 2. Form: Recitals 8.60
      • 3. Form: Introduction to Provisions of Agreement 8.61
      • 4. Form: Granting Clause 8.62
      • 5. Form: General Reservation Clause 8.63
      • 6. Form: Duration Clause 8.64
      • 7. Form: Subordination 8.65
      • 8. Form: Signatures 8.66
    • G. Form: License Agreement 8.67

9

Title, Survey, and Title Insurance Issues

Laura S. Lowe

David G. Boss

Peter Brian Bothel

Cynthia K. Long

  • I. ROLE OF ATTORNEY: REVIEWING TITLE AND RESOLVING PROBLEMS
    • A. Inspecting Title Documents and Property 9.1
    • B. Reviewing Preliminary Reports 9.2
      • 1. Exception Documents 9.3
      • 2. Easements Burdening the Property 9.4
      • 3. Easements Benefiting the Property 9.5
        • a. Access 9.6
        • b. Utilities 9.7
        • c. Common Areas 9.8
    • C. Resolving Problems 9.9
      • 1. Terminating Easements 9.10
        • a. Quitclaim Deed 9.11
        • b. Vacating 9.12
        • c. Relocating 9.13
        • d. Abandonment 9.14
      • 2. Creating Easements 9.15
  • II. SURVEYS
    • A. ALTA/NSPS Land Title Survey Standards 9.16
    • B. Aerial Surveys 9.17
    • C. Surveys of Record Easements 9.18
      • 1. Location 9.19
      • 2. Dimensions 9.20
      • 3. Affected Properties 9.21
      • 4. Conflicting or Concurrent Uses May Be Excepted From Coverage 9.22
      • 5. Encroachments Onto Easement Area 9.23
    • D. Surveys May Reveal Unrecorded Easements 9.24
      • 1. Surveys Showing Evidence of Possession 9.25
      • 2. Surveys Locating Utilities 9.26
      • 3. Surveys Locating Driveways, Parking Spaces, Curbs 9.27
      • 4. Encroachments Onto Property 9.28
  • III. RECORDATION ISSUES
    • A. Constructive Notice; Indexing 9.29
    • B. Margins for Recordation of Data and Photographic Reproduction 9.30
    • C. Accurate Identification of Grantor and Grantee 9.31
    • D. Legibility of Text 9.32
    • E. Signatures of Grantor and Grantee 9.33
    • F. Acknowledgment of Signatures 9.34
    • G. Document in English 9.35
  • IV. TITLE INSURANCE FOR EASEMENTS BENEFITING REAL PROPERTY
    • A. Why Title Insurance Is Necessary 9.36
    • B. Structure of Title Insurance Policies 9.37
    • C. Common Risks That Cloud Title 9.38
      • 1. Foreclosure Risk 9.39
      • 2. Easements Extinguished by Merger 9.40
      • 3. Vague or Incomplete Legal Descriptions 9.41
    • D. Insuring Easement Specifically 9.42
    • E. Scope and Use Disputes Not Insured 9.43
    • F. Creating Insurable Easement 9.44
    • G. Commonly Insured Easements 9.45
    • H. Endorsements That Enhance Coverage for Insured Easements 9.46
      • 1. Access Endorsements 9.47
      • 2. Contiguity Endorsements 9.48
      • 3. Zoning Endorsements 9.49
  • V. EASEMENTS AS EXCEPTIONS IN TITLE POLICIES
    • A. Schedule B Exceptions 9.50
    • B. Reviewing Easements Excepted From Coverage 9.51
    • C. Expanding Coverage With Endorsements 9.52
      • 1. Comprehensive Endorsements 9.53
      • 2. Other Easement-Related Endorsements 9.54
  • VI. EASEMENTS AND TITLE INSURANCE CLAIMS
    • A. Defense Obligations 9.55
    • B. Measure of Loss for Easement Claims 9.56

10

Litigating Easement and Boundary Disputes

David L. Roth

Elizabeth C. Gianola

Jeffrey N. Garland

Jason L. Satterly

  • I. INTRODUCTION; CHAPTER SCOPE 10.1
  • II. INITIAL CLIENT CONSULTATION 10.2
    • A. Instructions to Client for Initial Consultation 10.3
    • B. Conduct of Initial Consultation 10.4
    • C. Issues to Consider During Initial Consultation 10.5
      • 1. Early Retention of Experts 10.6
      • 2. Prevalence of Mistaken Ideas About the Law 10.7
      • 3. Insurance Coverage 10.8
      • 4. Handling Client's Emotional Issues 10.9
    • D. Options for Resolving Easement and Boundary Disputes 10.10
    • E. Checklist: Dos and Don'ts in Boundary Location and Encroachment Disputes 10.11
  • III. RESEARCHING LOCAL ORDINANCES 10.12
    • A. Ordinances Governing Construction 10.13
    • B. Heritage Tree Ordinances 10.14
    • C. View Ordinances 10.15
    • D. Ordinance Enforcement 10.16
    • E. Accessing Municipal Codes 10.17
  • IV. INSURANCE ISSUES 10.18
    • A. Giving Notice of Claim and Tendering Defense 10.19
    • B. Differences Between Title Insurance and Other Insurance 10.20
    • C. Title Insurance 10.21
    • D. Property Insurance and Liability Insurance 10.22
    • E. When Insurer Must Investigate or Defend 10.23
  • V. GATHERING FACTS AND EVIDENCE 10.24
    • A. Site Visit 10.25
    • B. Surveying 10.26
    • C. Consultants and Expert Witnesses 10.27
      • 1. Surveyors 10.28
      • 2. Appraisers 10.29
      • 3. Arborists and Other Plant Experts 10.30
      • 4. Engineering Experts 10.31
    • D. Title Documents
      • 1. Title Documents to Obtain 10.32
      • 2. What to Look for in Title Documents 10.33
    • E. Photographs, Videos, and Diagrams 10.34
    • F. Permit Records 10.35
    • G. Potential Witnesses 10.36
      • 1. Interviewing Prospective Witnesses 10.37
      • 2. Securing Witness Statements 10.38
    • H. Public Records 10.39
    • I. Online Research 10.40
  • VI. FILING THE COMPLAINT: THEORIES OF RECOVERY AND TACTICAL CONSIDERATIONS 10.41
    • A. Standard Theories of Recovery
      • 1. Quiet Title and Declaratory Relief 10.42
      • 2. Trespass and Nuisance 10.43
      • 3. Breach of Contract 10.44
      • 4. Negligence; Slander of Title 10.45
      • 5. Nondisclosure and Misrepresentation 10.45A
    • B. Lis Pendens 10.46
    • C. Boundary Dispute and Easement Theories of Recovery
      • 1. Prescriptive Easements 10.47
      • 2. Easements by Necessity 10.48
      • 3. Easement by Implication 10.49
      • 4. Equitable Easements and the Doctrine of Relative Hardships 10.50
      • 5. Easements by Agreement 10.51
      • 6. Agreed Boundary 10.52
      • 7. Boundary Revisions Under Cullen Earthquake Act 10.52A
      • 8. Other Legal Theories Establishing Easements 10.53
    • D. Ownership, Possession, and Occupancy Theories of Recovery
      • 1. Adverse Possession 10.54
      • 2. Ejectment 10.55
      • 3. Forcible Entry and Detainer 10.56
    • E. Remedies
      • 1. Judgments and Declarations of Legal Title 10.57
      • 2. Damages and Specific Performance 10.58
      • 3. Injunctions 10.59
    • F. Complaint Forms
      • 1. Form: Complaint for Declaratory and Injunctive Relief (to Establish and Enforce Equitable Easement) 10.59A
      • 2. FORM: MULTITHEORY COMPLAINT FOR FRAUD AND ALTERNATIVE REMEDIES 10.59B
      • 3. Form: Verified Complaint: To Quiet Title to Prescriptive Easement; To Quiet Title to Equitable Easement; For Enforcement of Easement Pursuant to CC §809; To Enjoin Private Nuisance; For Declaratory Relief 10.59C
      • 4. Form: Verified Cross-Complaint: To Quiet Title to Parking Easement on Real Property; For Enforcement of Easement Pursuant to CC §809; To Enjoin Private Nuisance; For Declaratory Relief 10.59D
      • 5. Other Complaint Forms 10.59E
  • VII. RESPONDING TO THE COMPLAINT 10.60
    • A. Answers and Dispositive Motions
      • 1. Tactical and Strategic Decisions 10.61
      • 2. Affirmative Defenses 10.62
        • a. Statute of Limitations 10.63
        • b. Comparative Fault 10.64
        • c. Other Affirmative or Statutory Defenses 10.65
    • B. The Cross-Complaint: Theories of Recovery 10.66
      • 1. Termination of an Easement 10.67
      • 2. Limitation of Easement Right 10.68
      • 3. Good Faith Improver Statute 10.69
      • 4. Inverse Condemnation Damages 10.69A
      • 5. Recovery of Maintenance and Repair Costs 10.70
    • C. Indemnity Actions Against Third Parties 10.70A
  • VIII. DISCOVERY IN EASEMENT AND BOUNDARY DISPUTES
    • A. Strategies 10.71
      • 1. Nature of Dispute and Relevant Discovery Topics
        • a. Disputes Concerning the Location of an Easement or Boundary 10.72
        • b. Disputes Concerning the Use of an Easement 10.73
        • c. Disputed Encroachments 10.74
      • 2. Objectives and Special Considerations 10.75
      • 3. Discovery Methods
        • a. Informal Discovery Methods 10.76
          • (1) Documents 10.77
          • (2) Expert Consultation 10.78
          • (3) Site Visits; Informal Versus Formal Discovery 10.79
        • b. Formal Discovery Methods 10.80
          • (1) Demands for the Inspection and Copying of Documents, Land, and Other Tangible Things 10.81
          • (2) Requests for Admissions, Interrogatories, and Depositions 10.82
  • IX. SETTLEMENT TECHNIQUES 10.83
    • A. Types of Agreements Commonly Used to Settle Easement and Boundary Disputes
      • 1. Easement Agreements 10.84
      • 2. Encroachment and License Agreements 10.85
      • 3. Party Wall Agreements 10.86
      • 4. Maintenance Agreements 10.87
      • 5. Voluntary Lot Line Adjustments 10.87A
      • 6. Subdivisions; Common Interest Developments 10.88
      • 7. General Considerations 10.89
    • B. Financial and Insurance Considerations 10.90
    • C. Mediation 10.91
    • D. Third Parties 10.92
  • X. TRIAL OF EASEMENT AND BOUNDARY DISPUTE CASES
    • A. Jury or Bench Trial 10.93
    • B. Pretrial Motions and Stipulations 10.94
    • C. Judgments 10.95
    • D. Attorney Fees and Costs; Effect of CCP §998 10.96
    • E. Interest on Damages Awarded 10.97

CALIFORNIA EASEMENTS AND BOUNDARIES: LAW AND LITIGATION

(1st Edition)

August 2017

TABLE OF CONTENTS

 

File Name

Book Section

Title

CH02

Chapter 2

Development Easements

02-069

§2.69

Reciprocal Easement Agreement

02-070

§2.70

Table of Exhibits (Reciprocal Easement)

02-071

§2.71

Utility and Access Easement Agreement

02-072

§2.72

Table of Exhibits (Utility and Access Easement)

02-073

§2.73

Slope and Drainage Easement Agreement

02-074

§2.74

Table of Exhibits (Slope and Drainage Easement)

CH04

Chapter 4

Construction-Related Agreements

04-006

§4.6

Access Agreement

04-008

§4.8

Form Provision: License to Monitor Adjacent Property

04-008A

§4.8A

Grant of Temporary Construction Easement

04-008B

§4.8B

Grant of Public Service Easement

04-008C

§4.8C

Grant of Storm Drain Easement

04-008D

§4.8D

Grant of Public Pedestrian Access Easement

04-008E

§4.8E

Grant of Temporary Emergency Vehicle Access Easement

04-008F

§4.8F

Subordination Agreement

04-008G

§4.8G

Subordination and Waiver Agreement

04-016

§4.16

Underpinning and Tieback Agreement

04-024

§4.24

Notice of Intended Excavation

CH05

Chapter 5

Utility Easements and Access Rights

05-025

§5.25

Drafting Utility Easements; Additional Clauses

05-026

§5.26

Utility Distribution Easement Grant Deed

05-027

§5.27

Joint Use and Easement Relocation Agreement

05-028

§5.28

Drainage and Construction Easement Agreement

05-029

§5.29

Utility Easement Agreement for Underground Transmission of Electricity

CH06

Chapter 6

Conservation Easements

06-001A

§6.1A

Checklist: Negotiating and Drafting Conservation Easements

06-008

§6.8

Form Provision: Changed Economic Circumstances

06-018

§6.18

Form Provision: Public Policy Recitals

06-050

§6.50

Grant Deed and Conservation Easement and Agreement

CH08

Chapter 8

Boundary Easements and Neighboring Property Rights

08-011

§8.11

Party Wall Agreement

08-028A

§8.28A

Notice of Intention to Incur Costs for Boundary Fence (Good Neighbor Fence Act)

08-059

§8.59

Title and Introductory Paragraph

08-060

§8.60

Recitals

08-061

§8.61

Introduction to Provisions of Agreement

08-062

§8.62

Granting Clause

08-063

§8.63

General Reservation Clause

08-064

§8.64

Duration Clause

08-065

§8.65

Subordination

08-066

§8.66

Signatures

08-067

§8.67

License Agreement

CH10

Chapter 10

Litigating Easement and Boundary Disputes

10-011

§10.11

Checklist: Dos and Don’ts in Boundary Location and Encroachment Disputes

10-059A

§10.59A

Complaint for Declaratory and Injunctive Relief (to Establish and Enforce Equitable Easement)

10-059B

§§10.59B-10.59D

Form: Multitheory Complaint For Fraud And Alternative Remedies

 

§10.59C

Verified Complaint: To Quiet Title to Prescriptive Easement; To Quiet Title to Equitable Easement; For Enforcement of Easement Pursuant to CC §809; To Enjoin Private Nuisance; For Declaratory Relief

 

§10.59D

Verified Cross-Complaint: To Quiet Title to Parking Easement on Real Property; For Enforcement of Easement Pursuant to CC §809; To Enjoin Private Nuisance; For Declaratory Relief

 

Selected Developments

August 2017 Update

Supreme Court Cases. The California Supreme Court ruled that CC §1009 prevents use of private property (other than coastal property, as defined in the statute) by members of the public for nonrecreational as well as recreational purposes from ripening into prescriptive rights, resolving a split in the courts of appeal. See Scher v Burke (2017) 3 C5th 136, cited in §§1.32, 1.42, 7.11, 9.25.

An entity contemplating the acquisition of property by eminent domain may petition the superior court for an order allowing it to enter the property to take photographs and conduct studies, tests, surveys, and similar activities. The constitutionality of those statutes authorizing the entry was upheld by the supreme court in Property Reserve, Inc. v Superior Court (2016) 1 C5th 151, which reformed CCP §1245.060(c) to give the property owner an option for a jury trial on the measure of damages provided in that section. See §§1.43, 1.76, 4.5.

In City of Perris v Stamper (2016) 1 C5th 576, a case arising from a city's condemnation of land for a road as an alternative to dedication pursuant to the permit process, the supreme court considered the constitutional analysis imposed by precedent that a dedication requirement (1) have an essential nexus to the valid public purpose that would be served by denying the development permit outright and (2) be roughly proportional to the impact of the proposed development. The court ruled that the essential nexus and rough proportionality inquiries are properly decided by a court, not by a jury. See §7.13.

Equitable & Prescriptive Easements. Another court of appeal has recognized that the equitable easement doctrine may be used not only as a defense against actions for removal of an encroachment or injunction against trespass, but also affirmatively as the basis for a judgment declaring the existence of an easement. See Hinrichs v Melton (2017) 11 CA5th 516 (equitable easement granted to plaintiff over small part of neighboring property; plaintiff also had connecting easement by necessity over another neighboring parcel even though there was no prior history of use over these neighboring parcels for access; plaintiff's property would otherwise be landlocked). See §§1.23, 1.44, 1.63, 1.69, 1.75, 8.24—8.25, 8.39, 10.48, 10.50, 10.67, 10.96.

California easement by prescription law is founded entirely in the common law. For a discussion of the burden of proof required to establish prescriptive easement rights, see Vieira Enters., Inc. v McCoy (2017) 8 CA5th 1057 (clear and convincing evidence not required). See §§1.32—1.33, 1.63, 1.69, 1.76, 8.22, 9.23, 10.67.

Civil Code §1009 applies prospectively and does not restrict application of the Gion rule to claims preceding its operative date in 1972. See Friends of the Hastain Trail v Coldwater Dev., LLC (2016) 1 CA5th 1013 (trial court applied ruling in Gion to consider public's use of fire road easement between 1967 and 1972 and declared public trail easement was established by implied dedication through defendants' property for hiking, jogging, and dog-walking, but court of appeal concluded public's hiking use of fire road was insufficient to place predecessors on notice of risk of implied dedication). See §§1.42, 7.11, 8.43A.

When balancing the hardships to the parties in an equitable easement case, the easement will not be granted if the encroachment is willful or negligent. Nellie Gail Ranch Owners Ass'n v McMullin (2016) 4 CA5th 982 (defendants knew they were building on plaintiff's land). See §§1.44, 8.22, 8.24, 10.50.

Water Rights & Public Trust Doctrine. By legislation, "the use of water for domestic purposes is the highest use of water" in California and "the next highest use is for irrigation." Wat C §106. But this policy does not apply to use or allocation of water that is governed by federal treaties with Native American tribes. See Agua Caliente Band of Cahuilla Indians v Coachella Valley Water Dist. (9th Cir 2017) 849 F3d 1262 (state groundwater rights preempted by federal reserved rights and not subject to appropriation under state law). See §§3.13A, 3.22.

Although Wat C §106 firmly establishes that domestic water use "is the highest use," a water district that sells groundwater may charge a municipality a higher fee per unit for water used for domestic purposes than it charges for water used for agricultural purposes. Whether such extraction fees constitute property-related fees subject to Proposition 218 (Cal Const art XIIID) is currently under review by the supreme court in City of San Buenaventura v United Water Conserv. Dist. (review granted June 24, 2015, B251810; superseded opinion at 235 CA4th 228). See §3.13A.

Because of higher levels of water in the state due to increased snow and rainfall between 2016 and 2017, Governor Brown, on April 7, 2017, signed Executive Order B—40—17, terminating the January 17, 2014, Drought State of Emergency, but this order did not apply to the counties of Kern, Fresno, Tulare, and Tuolumne. See §3.13B.

The State Water Resources Control Board has broad management authority over groundwater use and conservation; new regulations on groundwater sustainability were issued by the Board in June 2016. See §3.13D.

The State of California holds tidelands and navigable waters in trust to preserve these resources for public purposes. Navigable waters are also subject to federal environmental law; an individual has standing to pursue a claim against a noncompliant landowner if the individual can demonstrate he or she has been injured because of violations of environmental laws. California Sportfishing Protection Alliance v River City Waste Recyclers, LLC (ED Cal 2016) 205 F Supp 3d 1128. See §3.20.

Federal regulations to clarify the definition of "waters of the United States," published in June 2015, were stayed nationwide in Ohio v U.S. Army Corps of Eng'rs (In re EPA & DOD Final Rule) (6th Cir 2015) 803 F3d 804. Following that, President Trump issued Executive Order No. 13778 (Feb. 28, 2017) directing the responsible agencies to reconsider the narrower interpretation of "waters of the United States" under Supreme Court precedent and to rescind or revise the 2015 regulations accordingly. See §3.20.

The California Supreme Court is reviewing Lynch v California Coastal Comm'n (review granted Dec. 10, 2014, S221980; superseded opinion at 229 CA4th 658) (court of appeal opinion declared unconstitutional "expiration condition" on seawall construction permit because it essentially required homeowners to convey to Coastal Commission negative easement across their bluffs without compensation). See §3.22A.

Utility Easements & Liability. Permanent rights-of-way over public land for utility purposes are usually subject to environmental impact review primarily under the National Environmental Policy Act of 1969, but other federal laws may also apply. See Protect Our Communities Found. v Jewell (9th Cir 2016) 825 F3d 571 (government agency not liable under conservation statutes for its regulatory decision to grant right-of-way, subject to numerous mitigation measures, for development and operation of renewable wind energy project). See §4.18A.

When underground utility facilities (i.e., subsurface installations) exist, farming activities, trenching, construction excavation, and other digging activities may present a hazard to public safety, the utility facilities, or both. A system to notify of the intent to excavate and to determine the location and depth of all subsurface installations within the area of a planned excavation is established under Govt C §§4216—4216.24, which were substantially amended in 2016. See §5.9.

In Wilson v Southern Cal. Edison Co. (2015) 234 CA4th 123, the jury found in favor of plaintiff on her claims for intentional infliction of emotional distress, negligence, and nuisance because the defendant failed to properly supervise, secure, operate, maintain, or control the electrical substation next door to plaintiff's home, allowing uncontrolled stray electrical currents to enter the home. See §5.10.

Conservation Easements & Deductibility. A detailed checklist to assist attorneys in negotiating and drafting conservation easements was added to chap 6. See §6.1A.

Until January 1, 2020, a city or county must charge the owner a rescission fee of 10 percent of the fair market value of the property at the time of the conversion of land protected under the Williamson Act to a solar-use easement project. Govt C §51255.1(c). See §6.8B.

Greenway easements are different from traditional conservation easements in substantial ways; in addition to promoting preservation of land in its natural condition, greenway easements are intended to (1) encourage development of greenway corridors adjacent to urban waterways consistent with restoration efforts made at those waterways at the time of the creation of the easement and (2) preserve existing greenways adjacent to urban waterways under CC §§816.50, 816.52(c). See §§6.8C.

Grantors of conservation easements must initially have a legally cognizable interest in the property in order to realize income tax deduction benefits for donating the easement. RP Golf, LLC, TC Memo 2016—80. See §6.15.

Under Treasury Regulations, inconsistent use of the donated easement is prohibited, and a tax deduction will not be allowed if the easement would accomplish one of the enumerated conservation purposes but would permit destruction of other significant conservation interests. In John A. Atkinson, TC Memo 2015—236, the court concluded that the manner of operating a golf course could cause the naturally occurring ecosystem to be injured or destroyed because the petitioners sprayed pesticides, insecticides, fungicides, herbicides, and fertilizers on nearly 63 percent of the easement area. See §6.15.

No deduction is allowed for a conservation easement on property that is subject to a mortgage, unless the mortgage lender subordinates its rights in the property at the time of the easement donation to the right of the grantee or qualified organization to enforce the conservation purposes of the easement. Minnick v Commissioner (9th Cir 2015) 796 F3d 1156, 1160; RP Golf, LLC, TC Memo 2016—80. See §§6.15, 6.30.

Street, Trail & Road Easements. A public entity may remove an encroachment installed by a private landowner without a permit. See Jamison v Department of Transp. (2016) 4 CA5th 356, 366 (private drainage improvements in state highway easement required encroachment permit). See §7.29.

The issuance of a Notice of Interim Trail Use (NITU) permits a railroad with an easement to discontinue service, cancel tariffs, and salvage track and other equipment; the NITU extends indefinitely to permit interim trail use of the easement and may trigger a compensable taking from the property owner, even if no trail use agreement is ultimately reached; in that event, the taking is temporary and such physical takings are compensable. James v U.S. (2017) 130 Fed Cl 707. See §7.71.

Some courts held that a railroad easement is not terminated on a rails-to-trails conversion, but the easement continues in existence. Further, the easement may be used by the trail operator as the basis for granting rights to third parties within the easement area, including those portions of the subsurface below (and the airspace above) the right-of-way traditionally within the scope of the easement. See Hornish v King County (WD Wash 2016) 182 F Supp 3d 1124; Kaseburg v Port of Seattle (WD Wash, Aug. 23, 2016, No. C14—0784 JCC) 2016 US Dist Lexis 112967, cited in §7.71.

On calculating attorney fees in NITU cases, see Haggart v Woodley (Fed Cir 2016) 809 F3d 1336 (fee award governed by 42 USC §4654, not by common fund doctrine). See §7.71.

When a broadly drafted grant of a railroad easement allows "for such other purposes" as the railroad company and its successors desire to make of it, it is broad enough to encompass the use of the property for a park, but when the deed results from a condemnation and conveyed only a "right-of-way," the grant is an easement only for railroad purposes. Hardy v U.S. (2016) 129 Fed Cl 513. See §7.71.

If the scope of the rail easement that is the subject of the trail conversion is sufficiently broad, the trail operator may have the right to grant rights-of-way to third parties for incidental uses as long as they are consistent with trail use and the operation of a railroad. Kaseburg v Port of Seattle (WD Wash, Oct. 23, 2015, No. C14—0784 JCC) 2015 US Dist Lexis 144529 (trail operator had right to grant licenses to light rail transit authority and electrical utility within right-of-way). See §7.71.

Easements & Licenses for Recreational Use. Civil Code §846 immunizes both owners and easement holders from third party personal injury liability arising from recreational use of the property. An exception under §846 exists when consideration was paid in return for permission to enter the property. A court of appeal ruled that this exception did not apply to a utility company that had a license to maintain its distribution lines and the vegetation in the vicinity of its lines in a county park, even though the injured party's entrance fee to the park was paid to the county, not the licensee. PG&E v Superior Court (2017) 10 CA5th 563. See §8.29.

A court of appeal held that §846 shields owners from liability when recreational users of their property cause injury to persons who are outside the property and uninvolved in the recreational use. Wang v Nibbelink (2016) 4 CA5th 1 (plaintiffs were injured by horse that ran away from meadow owned by defendants, who gave their permission for third party event on meadow but did not organize, supervise, or observe event). See §8.29.

Tree Damages & Liability. California statutory law generally provides for double (and possibly treble) damages for injuries to trees inflicted by neighboring owners. In addition to economic damages, the multiplier also applies to annoyance and discomfort damages resulting from the tree damage. See Fulle v Kanani (2017) 7 CA5th 1305, cited in §8.30.

Because there is no general easement right for light and air under California state law, a tree's mere interference with a view or light and air, or the tree's blockage of the sun, is not a taking or a nuisance under state law. Boxer v City of Beverly Hills (2016) 246 CA4th 1212. See §§8.30, 10.43.

Litigation of Easements & Neighboring Property Rights. A detailed checklist to assist attorneys in negotiating and litigating boundary location and encroachment disputes was substantially revised in §10.11.

Chapter 10 was enhanced with a discussion of private parties enforcing land use and other ordinances when neighboring property owners have violated such ordinances; private parties can bring a "writ" action against a local entity under CCP §1094.5 after exhausting administrative remedies or file an action under Govt C §36900(a), which courts have interpreted to allow a private right of action against adjacent owners to redress violations of local ordinances. See §10.16.

A newly added attorney-drafted complaint form for damages and rescission resulting from the nondisclosure of an easement is in §10.59B. For new complaint forms with multiple alternative causes of action, including relief in the form of an equitable easement, see §§10.59C—10.59D.

About the Authors

DAVID G. BOSS, coauthor of chapters 3 and 9, is the founder and Principal of The Boss Law Firm, APLC, San Diego. He represents title insurers and developers in real estate matters and has provided legal counsel to title insurers in connection with the coverage for, and resolution of, numerous title insurance claims as well as the underwriting of title insurance transactions involving residential, commercial, industrial, agricultural, and publicly owned or managed lands. Mr. Boss received his B.A. degree from the University of California (Los Angeles) in Economics in 1981 and his J.D. degree from the University of San Diego Law School in 1984.

PETER BRIAN BOTHEL, coauthor of chapters 3 and 9, was a senior associate with the firm of Cassidy, Shimko & Dawson, San Francisco. Now deceased, Mr. Bothel practiced in the real property law areas of acquisitions and financing, commercial leasing, and other real estate transactions. He also had experience in real estate litigation, title issues, title insurance coverage and escrow, foreclosures, and easements. Mr. Bothel received his J.D. from Duke University School of Law in 1977 and his B.A. from Wheaton College, Illinois, in 1974.

JEROME F. CANDELARIA, coauthor of chapter 5, is Vice President & Counsel, Regulatory Affairs, California Cable & Telecommunications Association, Sacramento. He represents the cable industry on regulatory matters before the FCC, CPUC, and other state agencies. He currently serves as the national cable industry representative on the FCC's North American Numbering Council and is the Vice-Chair of the State Emergency Communications Committee. Mr. Candelaria received his B.A. in 1986 from the University of California, Berkeley, and his J.D. in 1989 from Harvard Law School.

SUSAN F. FRENCH, author of chapter 1, assisted in the planning of this book and is an emerita member of the faculty at the University of California, Los Angeles, School of Law. She was the Reporter for the Restatement (Third) of the Law of Property, Servitudes (2000) and is coauthor of casebooks in Property and Community Association Law (common interest communities). Professor French taught Property, Trusts & Wills, and Community Association Law, and has published in all three fields. She received her A.B. from Stanford University in 1964 and her J.D. from the University of Washington in 1967.

JEFFREY N. GARLAND, coauthor of chapter 10, is senior counsel with Hilbert & Satterly, LLP, San Diego. He specializes in all aspects of real estate and business litigation, from inception through appeal, including an extensive title insurance practice. He has served as a court-appointed special master and as a mediator. Mr. Garland received his B.A. in 1971 from United States International University and his J.D. (magna cum laude) in 1974 from the University of San Diego Law School, where he was Lead Article Editor of the San Diego Law Review.

ELIZABETH C. GIANOLA, coauthor of chapter 10, is a shareholder of Horan Lloyd, PC, Carmel. She specializes in real property and commercial litigation before both state and federal courts. She is past Vice Chair of the Executive Committee, Real Property Law Section of the State Bar. Ms. Gianola received her B.S. from the University of California, Berkeley, her J.D. from the University of California, Berkeley, School of Law, and her Ph.D. in law from the Sorbonne.

DANIEL L. GOODKIN, coauthor of chapter 8, and founding partner of Goodkin & Lynch LLP, Los Angeles, is a real estate and construction litigator and has tried multiple cases involving easements and boundary disputes. He also litigates and is a frequent speaker on lien laws, title issues, real property purchase and sale agreements, landlord-tenant issues, mold litigation, and indoor air quality issues. He is a member of the Executive Committee of the Real Estate Section of the Los Angeles County Bar Association and also served as a Judge Pro Tem for the Los Angeles Superior Court. Mr. Goodkin received his B.A. from the University of California, Los Angeles, and his J.D. from Loyola Law School, Los Angeles.

LAURENCE L. HUMMER, coauthor of chapter 8, assisted in the planning of this book and is a sole practitioner in Los Angeles. His practice focuses on civil litigation and on commercial and residential real estate transactions. He has tried cases involving real property purchase and sale agreements; construction contracts, delays, and defects; quiet title to real estate; commercial landlord-tenant disputes; neighborhood height limitations and view restrictions; and contamination of industrial property and groundwater. He has resolved many real estate boundary, easement, and encroachment disputes for businesses and homeowners. Mr. Hummer received his A.B. in 1973 from Stanford University and his J.D. in 1980 from the University of California, Los Angeles, School of Law.

CYNTHIA K. LONG, coauthor of chapter 9, was formerly a partner in Bothel &; Long, San Francisco, and is Senior Vice-President and Regional Counsel for Old Republic Title Company in San Francisco. She specializes in real property litigation. She is a speaker for CEB real property law programs and has contributed to other CEB real property litigation publications. Ms. Long received her undergraduate degree from the University of Michigan and her J.D. in 1979 from Golden Gate University School of Law, San Francisco.

LAURA S. LOWE, coauthor of chapters 3 and 9, assisted in the planning of this book and is currently Senior Counsel with Old Republic Title Company in San Francisco. She formerly worked as the West Region Agency Counsel for LandAmerica Financial Group, Inc., the parent company for Lawyers Title Insurance Corporation. Ms. Lowe has presented programs for CEB and the State Bar Real Property Section. Ms. Lowe graduated from University of San Francisco School of Law in 1982 and received her B.S. in 1974 from Ohio State University.

WILLIAM H. LYNES, author of chapter 7, is Vice President and Commercial Counsel with Chicago Title Insurance Company and has been an attorney with Chicago Title and its predecessor Ticor Title Insurance Company of California since 1986. He acts as underwriting counsel on commercial and industrial transactions and on railroad and other specialty title transactions in the Los Angeles area. Mr. Lynes received his B.A. in 1972 from St. Lawrence University, and his J.D. in 1976 from the University of San Fernando Valley College of Law.

NEAL A. PARISH, coauthor of chapter 2, specializes in real estate, land use, and public agency law at Wendel, Rosen, Black & Dean LLP, Oakland. For private industry and individual clients, he negotiates and analyzes real estate contracts, including leases, purchase and sale contracts, subdivision documents including CC&Rs, and easements. He also assists a variety of clients with land use and permitting issues. He served as chair of the City of Oakland Landmarks Preservation Advisory Board. Mr. Parish received his B.A. from the University of California, Los Angeles, his Master of City Planning and his M.S., Transportation Engineering, from the University of California, Berkeley, and his J.D. from the University of California, Berkeley, School of Law.

JAMES L. PIERCE, author of chapter 6, serves as a Senior Staff Counsel in the California Department of Conservation, Sacramento. He formerly worked in the California Attorney General's Office, as a sole practitioner in Mt. Shasta, and as Staff Counsel to the California State Coastal Conservancy in Oakland. He specializes in land use and conservation, real property, environmental, and public agency law. Mr. Pierce received his B.M. in 1984 from San Francisco State University, his M.M. in 1985 from Northwestern University, and his J.D. in 1991 from University of San Francisco School of Law. Any statements in chapter 6 are solely the personal statements of the author and do not reflect the views of any governmental agency or official, including, but not limited to, the California Department of Conservation.

DAVID L. PREISS, coauthor of chapter 2, assisted in the planning of this book and is a partner with Holland & Knight LLP, San Francisco (formerly a partner with Wendel, Rosen, Black & Dean LLP in Oakland), specializing in land use, real estate, and surface mining issues, as well as real estate development and transactions. He was a contributing author on CEB leasing and development books and frequently lectures on land use and development law. Mr. Preiss obtained his B.A. in 1977 from Williams College and his J.D. in 1982 from the University of California, Davis, School of Law.

ANDREW K. RAUCH, coauthor of chapter 5, assisted in the planning of this book and is the principal of Andrew Rauch, APC, San Diego, specializing in eminent domain, agriculture law, and real estate litigation. Earlier in his career he worked for the California Department of Transportation, handling tort defense, eminent domain matters, and real estate transactions. He is a member of the State Bar Real Property Law Section and the International Right-of-Way Association. Mr. Rauch received his B.S. from Brigham Young University in 1984, and his J.D. from Lincoln Law School, Sacramento, in 1988.

DAVID L. ROTH, coauthor of chapter 10, assisted in the planning of this book, is the principal of The Real Estate Law Offices of David L. Roth, and specializes in real estate litigation and transactions. He is a former chair of the Alameda County Bar Association Real Estate Section, and he speaks regularly to attorney and legal professional groups on real estate topics. Mr. Roth received his B.A. in 1975 from Occidental College and his J.D. in 1978 from the University of California, Hastings College of the Law.

EDWARD S. RUSKY, coauthor of chapter 3, is currently Senior National Underwriting Counsel for the National Commercial Services Department of First American Title Insurance Company, San Francisco. He specializes in underwriting and closing complex, high-liability, multisite commercial transactions for national clients. Mr. Rusky received his law degree from the University of California, Berkeley, School of Law in 1971; he was admitted to the California and Federal Bars in 1972.

JASON L. SATTERLY, coauthor of chapter 10, is an associate attorney with Hilbert & Satterly, LLP, San Diego. He specializes in real estate and business litigation. He was a member of the CEB's Young Lawyer Advisory Panel and a recipient of the State Bar's Wiley M. Manuel Award for Pro Bono Legal Services. Mr. Satterly received two B.A.s in 2001 from Eastern Kentucky University (magna cum laude) and his J.D. in 2005 from Thomas Jefferson School of Law (magna cum laude), where he was a Literary Editor for the Thomas Jefferson Law Review.

RICHARD M. SHAPIRO, author of chapter 4, is a partner in Farella Braun & Martel LLP, San Francisco. He specializes in real estate and construction transactions, representing owners, contractors, and design professionals. He has prepared and negotiated reciprocal easement agreements, commercial condominium documents, management, and real estate brokerage agreements. He received his a B.A. from Antioch College in 1969; his M. Arch. from the University of California, Berkeley, in 1973; and his J.D. from the University of California, Hastings College of the Law, in 1979. He is a California registered architect.

CAROLYN J. STEIN, coauthor of chapter 2, is a Deputy City Attorney with the Real Estate and Finance Team in the Office of the City Attorney of San Francisco. She was formerly a real estate attorney with Shorenstein Company and with Wendel, Rosen, Black & Dean LLP, Oakland. She is a member of the State Bar Real Property Section and has been a contributing writer, editor, and planner for CEB commercial leasing books. Ms. Stein received her B.A. from California State University, East Bay, and her J.D. from the University of California, Berkeley, School of Law.

STEPHEN STWORA-HAIL, coauthor of chapter 2, assisted in the planning of this book and was a member of the Advisory Committee of CEB's Real Property Practice Group. He is a partner in the Real Property Group at Best Best & Krieger, LLP, Sacramento. His transactional practice emphasizes acquisition, development, and lease agreements for the construction of new stores, as well as the CC&Rs and reciprocal easement agreements for the shopping centers in which they are located. He also has negotiated agricultural, utility, and conservation easements. Mr. Stwora-Hail received his B.A. degree from the University of Chicago and his J.D. from Santa Clara University.

JOHN DAVIDSON THOMAS, coauthor of chapter 5, was a partner in the Washington, D.C., office of Hogan Lovells LLP and has a national practice in the telecommunications and broadband communications industries. His practice focuses on the deployment of competitive networks and services; he represents cable television companies and other broadband providers on local franchising, rights-of-way, pole attachments, and similar issues. He received his J.D. from Boston University School of Law in 1990, his M.S. from Boston University in 1987, and his A.B. from Cornell University in 1984.

PAUL A. WERNER III, coauthor of chapter 5, is currently a civil litigation defense attorney in the Washington, D.C. office of Sheppard, Mullin, Richter & Hampton, was an associate in the Washington D.C. office of Hogan Lovells LLP, and represents clients in the telecommunications industry. Mr. Werner represents broadband providers on a variety of issues, including rights-of-way, local franchising, and pole attachments. He is also experienced in representing communications clients in federal and state court litigation and in adjudications and rulemakings before the Federal Communications Commission. He received his B.A. from the University of California, Los Angeles, in 1999 and his J.D. from Vanderbilt University Law School in 2002.

About the 2017 Update Authors

DAVID G. BOSS, update author of chapters 3 and 9; see biography in the About the Authors section of this book.

MARK D. EPSTEIN, update coauthor of chapter 10, specializes in real estate, business, lending, and insurance coverage litigation at Wendel, Rosen, Black & Dean LLP, Oakland. He successfully represented clients in resolving disputes that entail real property, title insurance, escrow, commercial landlord-tenant, mortgage lending, easement, boundary line, encroachment, and lien priority claims. He represents property owners, developers, fractional interest investors, title insurers, banks, and other financial institutions, as well as real estate professionals. Mr. Epstein is an adjunct professor at the University of California, Berkeley, School of Law, where he co-teaches a course on real estate transactions and litigation. He received his B.A. from the University of California, Davis, and his J.D. from the University of San Francisco School of Law.

SUSAN F. FRENCH, update author of chapter 1; see biography in the About the Authors section of this book.

DANIEL L. GOODKIN, update coauthor of chapter 8; see biography in the About the Authors section of this book.

LES A. HAUSRATH, update coauthor of chapters 4, 5, and 8, specializes in real estate litigation, eminent domain law, and public agency law at Wendel, Rosen, Black & Dean LLP, Oakland. He advises on land use, zoning, boundary, easements, title matters, and Subdivision Map Act and CEQA issues for clients including restaurants, wineries, shopping centers, health clubs, large and small service and entertainment businesses, and individuals. Mr. Hausrath also handles local sales and use tax disputes, conservation easements, and historic preservation issues. He is also Chair of the firm's Eminent Domain group and Litigation Practice Group. Mr. Hausrath received his B.A. from the University of California, Berkeley, and his J.D. from the University of California, Berkeley, School of Law.

LAURENCE L. HUMMER, update coauthor of chapter 8; see biography in the About the Authors section of this book.

WILLIAM H. LYNES, update author of chapter 7; see biography in the About the Authors section of this book.

NEAL A. PARISH, update author of chapter 2; see biography in the About the Authors section of this book.

JESSICA C. RADER, update author of chapter 6, serves as an Attorney III in the California Department of Conservation, Sacramento. She formerly was a Senior Staff Counsel in the California State Lands Commission; she specializes in land use and conservation, real property title issues, environmental, and public agency law. Ms. Rader received her B.A. in 2001 from Humboldt State University, Arcata, and her J.D. in 2007 from the University of the Pacific, McGeorge School of Law. Any statements in chapter 6 are solely the personal statements of the author and do not reflect the views of any governmental agency or official, including, but not limited to, the California Department of Conservation.

RICHARD M. SHAPIRO, update coauthor of chapter 4; see biography in the About the Authors section of this book.

KEITH TURNER, update coauthor of chapters 8 and 10, specializes in litigation involving real estate, business, and insurance issues, including title issues, view rights, CC&R and HOA disputes, construction, and property damages at Turner Law Firm, Santa Monica. In particular, he handles all types of neighbor disputes, including trees damages, nuisance claims, encroachments, and land use litigation. Mr. Turner also handles all types of insurance coverage matters involving real property claims, under business, homeowners, errors & omission, surety bonds, and title policies. He is presently Co-Chair of the Santa Monica Bar Association's Real Estate law committee. Mr. Turner received his B.A. from the University of Wisconsin, Madison, and his J.D. from the Illinois Institute of Technology, Chicago-Kent College of Law.

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PRODUCT GROUP Publication