August 2018 Update
Supreme Court Cases. An EIR prepared in connection with an application for a development permit must identify areas that might qualify as environmentally sensitive habitat areas (ESHA) and must account for ESHA in its analysis of project alternatives and mitigation measures. This incudes the impact of public access to parks from the proposed development. In Banning Ranch Conservancy v City of Newport Beach (2017) 2 C5th 918, a proposed access road from the development to a neighboring public park crossed ESHA that were occupied by an endangered insect. The supreme court ultimately concluded that the City failed to adequately address ESHA requirements and impacts and that the omission resulted in inadequate evaluation of project alternatives and mitigation measures. See §§2.28A, 3.22A.
Although Wat C §106 firmly establishes that domestic water use “is the highest use,” whether a water district that sells groundwater can charge a city a higher fee per unit for water used for domestic purposes than it charges for water used for agricultural purposes was challenged on state constitutional grounds in City of San Buenaventura v United Water Conserv. Dist. (2017) 3 C5th 1191. The supreme court ultimately concluded that the lower court did not fully analyze whether the manner in which those charges were allocated to the city did bear “a fair or reasonable relationship” to the city’s burdens on, or benefits received from, the water extracted and delivered to it, as required under Cal Const art XIIIC, §1, and thus remanded the case. See §3.13A.
Federal regulations to clarify the definition of “waters of the United States,” published in June 2015, were challenged in numerous cases consolidated in the Sixth Circuit. When the supreme court subsequently ruled that original jurisdiction over the rulemaking challenge rests not in the federal appellate courts but in the federal district courts (see National Ass’n of Mfrs. v U.S. Department of Defense (2018) 583 US ___ , 138 S Ct 617), the EPA and the Army Corps of Engineers promptly extended the applicability date of the 2015 regulations until February 6, 2020, in 83 Fed Reg 5200 (February 6, 2018) to await the completion of the district court challenges. See §3.20.
The California Supreme Court upheld as constitutional an “expiration condition” on a seawall construction permit even though it essentially required beach homeowners to convey to the Coastal Commission a negative easement across their bluffs without compensation. See Lynch v California Coastal Comm’n(2017) 3 Cal 5th 470, cited in §3.22A.
As a general rule, the rail provisions of the Interstate Commerce Commission Termination Act of 1995 (ICCTA) (49 USC §§10101–11908) will preempt any California law that has the effect of managing or governing rail transportation. But in Friends of the Eel River v North Coast R.R. Auth. (2017) 3 C5th 677, the California Supreme Court declared that the California environmental impact review process was not preempted by the ICCTA. See §7.50.
In Mountain Air Enters. v Sundowner Towers, LLC (2017) 3 C5th 744, the supreme court interpreted a narrowly drafted contractual attorney fee clause that expressly applied only to actions or proceedings “to enforce” the agreement; the court concluded that the assertion of an affirmative defense is not contemplated as an “action” or a “proceeding.” But the prevailing defendants in Mountain Air were entitled to fees under a different, broader provision in the same agreement that covered actions brought “because of an alleged dispute, breach, default, or misrepresentation in connection with any provision” of the agreement. See §10.96.
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.
Equitable and 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, 10.42, 10.48, 10.50, 10.67, 10.96.
California easement by prescription law is founded entirely in the common law. Adverse use by the servient tenant for 5 years (sometimes called prescriptive extinguishment) may terminate a private easement or right-of-way. Vieira Enters., Inc. v McCoy (2017) 8 CA5th 1057 (also discussed burden of proof for establishing prescriptive easement rights; clear and convincing evidence not required). See §§1.32–1.33, 1.63, 1.69, 1.76, 7.80, 8.22, 9.23, 10.43, 10.67.
Water Rights and Public Trust Doctrine. Development transactions that will reduce the intensity of public access to tidelands and navigable waters (under the constitutional public trust mandate) trigger the requirement for a Coastal Development Permit. Surfrider Found. v Martins Beach 1, LLC (2017) 14 CA5th 238. See §3.22A.
Airport, Construction, and Utility Easements; Liability Issues. In Dryden Oaks, LLC v San Diego County Reg’l Airport Auth. (2017) 16 CA5th 383, the court of appeal held that a county airport authority’s adoption of an airport land use compatibility plan, which designated adjacent undeveloped properties as within safety zone and could limit their future uses and ultimately acquire avigation easements over them, did not constitute a regulatory taking, despite the city’s previous issuance of development permits for those properties. See §3.28A.
The Access Agreement form, which temporarily allows an interested party contemplating construction to enter real property to inspect the property and to perform tests and other physical inspections with the approval of the property owner, was substantially amended to reflect industry standards, including insurance requirements. See §4.6.
The Underpinning and Tieback Agreement form, which temporarily allows a contractor on a neighboring construction project to perform excavation for the project, including installation of underpinning for the exposed foundations on adjacent property, as well as tieback supports for the shoring of the project into the foundation of the building on adjacent property, with the approval of the property owner, was substantially amended to reflect industry standards, including indemnification and insurance requirements. See §4.16.
An owner who consents to the use of its property in connection with the developer’s construction may require, in addition to indemnification from the developer, liability insurance and endorsement forms that extend coverage to the owner as an additional insured. See §4.34, which was substantially amended to reflect industry standards and practices for such insurance requirements.
Civil Code §§801(18) and 801.5 provide for the creation of easements by agreement to receive sunlight across neighboring real property for the use of any solar energy system. Under a new amendment to the law, a “solar energy system” includes any photovoltaic device or technology that is integrated into a building, including photovoltaic windows, siding, and roofing shingles or tiles. CC §801.5(a)(2)(B). See §§8.38, 10.15.
Conservation Easements and Deductibility. When a city or county chooses to develop an agricultural land component of the general plan’s open-space element or a separate agricultural land element, it must, among other things, identify and map all parcels subject to a conservation easement. Govt C §§65565(a)(1)(B).
Until January 1, 2020, a city or county must charge the owner a rescission fee of 10 percent of the fair market value of a 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.
Under Treas Reg §1.170A–14(g)(2), a tax deduction is not allowed for a conservation easement on property that is subject to a mortgage, unless the mortgage lender subordinates its rights in the property to the right of the grantee or qualified organization to enforce the conservation purposes. See RP Golf v Commissioner (8th Cir 2017) 860 F3d 1096 (mortgage subordination cannot be signed after execution of easement and backdated to make it “effective” on easement execution date). See §6.15.
Street, Trail, and Road Easements. Recent cases decided the applicability of statutory immunities for California public entities under the state Government Claims Act. See, e.g., Leyva v Crockett & Co. (2017) 7 CA5th 1105 (grantor of easement to public entity immune from liability for injuries caused to person using easement by stray golf ball from grantor’s adjacent private golf course). But see Garcia v American Golf Corp. (2017) 11 CA5th 532 (trail immunity did not apply to injuries caused by errant golf ball, where walkway was adjacent to public road and golf course was privately operated on public land); Toeppe v City of San Diego (2017) 13 CA5th 921 (immunity did not apply to injuries caused by falling branch on or near trail in public park). See §§2.49, 8.29.
A right-of-way granted under federal statutory law is a grant of the right to use the surface and so much of the subsurface as is necessary for railroad operations. That interest entitles the railroad company “to lease the subsurface as well as the surface” of its right-of-way to a petroleum company for oil pipelines as long as the railroad company continues to use the right-of-way to operate a railroad, regardless of whether the pipeline itself serves a “railroad purpose.” Barahona v Union Pac. R.R. (9th Cir 2018) 881 F3d 1122. See §7.66.
Tree Damages and 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.
The measure of damages that is augmented under CC §3346 does not apply to injuries to timber caused by negligently set fires; it applies only to cases involving cutting of timber. Scholes v Lambirth Trucking Co. (review granted June 21, 2017, S241825; superseded opinion at 10 CA5th 590). See §8.30.
Litigation of Easements and Neighboring Property Rights. Use made under an easement, lease, or license agreement is not adverse if it does not exceed the scope of the uses permitted by the agreement. See McBride v Smith (2018) 18 CA5th 1160 (use that exceeds express terms of granted easement may be adverse, satisfying condition required to modify or terminate easement by adverse possession), cited in §§1.33, 1.77, 8.51, 10.42–10.43, 10.47. McBride also concluded that no cause of action in trespass could be asserted by the easement holder, but that nuisance is the proper theory for an action for damages for the servient owner’s interference with an easement.
A new section on principles and characteristics of license agreements, which explains the differences between licenses and encroachment or easement agreements pertaining to neighboring property, as well as irrevocable licenses, was added in §8.32A.
Proper indexing of a recorded easement by the county recorder’s office is required for the document to give constructive notice to persons subsequently acquiring an interest in the affected property; the intent of the parties with regard to the priority of recorded documents is controlling despite the actual sequence of recording by a recorder or the sequence of recording specified in instructions given to the recorder. MTC Financial, Inc. v Nationstar Mortgage (2018) 19 CA5th 811. See §9.29.
Trespass and nuisance causes of action may be alleged when the defendant entered the plaintiff’s neighboring property without a legal right. But when the defendant is a servient owner who interfered with the plaintiff’s easement rights, the law is unsettled regarding the availability of a tort action in trespass for damages caused by the interference. See discussion of recent cases in §10.43.
Damage to private property caused by a public improvement deliberately conceived, altered, or maintained may be recovered under inverse condemnation. See Sierra Palms Homeowners Ass’n v Metro Gold Line Foothill Extension Constr. Auth. (2018) 19 CA5th 1127 (plaintiff allowed to amend its complaint to allege facts sufficient to support standing for inverse condemnation claim against municipal railway construction authority for damage to boundary wall), cited in §10.43.
An attorney-drafted complaint form for damages and rescission resulting from the nondisclosure of an easement is in §10.59B. For additional complaint forms with multiple alternative causes of action, including relief in the form of an equitable easement, see §§10.59C–10.59D.
There is a procedural difference between enforcing a judgment entered by the court after a trial on the merits and enforcing a judgment resulting from a pretrial settlement agreement to resolve the litigation. See Howeth v Coffelt (2017) 18 CA5th 126 (court of appeal held that proper remedy was to bring separate court action to enforce settlement regarding shared driveway), cited in §§10.44, 10.95.