Easements for ingress and egress usually only specify a width and location of the easement, without addressing the nature of the surface or improvements to the surface. Some don’t even specify the location of the easement (called a floating easement). A recent decision out of El Dorado County addressed whether the holder of a nonexclusive easement for ingress and egress could pave the road easement across the subservient parcel. The answer? It depends. The court also addressed whether a prior lawsuit between the parties over the same easement (neighbors but not friends) ‘split’ the cause of action, resulted in barring this current action.

In Bernstein v Sebring, the easement for ingress and egress included portions of a paved road and a 244 foot gravel/dirt road splitting off the paved road used as a driveway for the defendant-easement holder’s property. In 2018 (while the first easement lawsuit was pending) the easement holder told the plaintiff that he was going to immediately pave the gravel/dirt roadway, including the portion’s on plaintiff’s subservient property. This lawsuit followed. With the two lawsuits, the defendant claimed plaintiff violated the rule against splitting causes of action; more on that at the end of this post.

In Tait v. Commonwealth Land Title Insurance Company, (103 Cal.App.5th 271), the Taits had purchased a residential property in Danville for $1.25 million. They had planned to subdivide but later discovered a maintenance easement that covered the area of a drainage easement that the title policy did not include as an exception. They could not subdivide.

Commonwealth issued the Taits an American Land Title Association (ALTA) Homeowner’s Policy of Title Insurance for the property. The policy insured the Taits against “actual loss” arising from certain defined covered risks, which include someone else having an easement on the property.

In Holt v. Brock, (85 Cal. App. 5th 611 (2022), reh’g denied (Dec. 13, 2022), review denied (Mar. 15, 2023)) a brother and sister could not agree on what to do with an inherited house, so one filed for partition. Brock was appointed and the court ordered the parties to sign a listing agreement, the property to be sold “as is” with a listing price of at least $882,500, the actual listing price to be determined by the broker’s assessment of current market value.

The plaintiff offered to buy the property for $1 million if the broker reduced his commission to 3%. There is some dispute as to what happened, but after agreeing the broker decided he would not change the listing agreement. The house sold to the highest bidder for less than $1 million, and the plaintiff sued the broker.

All-inclusive deeds of trust are used when the interest rate on the existing loan is much lower than the current prevailing rate, the rate of the wraparound can be lower than the [prevailing rate, and the seller still earns a spread between the rate he is paying and the rate that the buyer is paying to the seller.

The exception is part of the Garn–St Germain Depository Institutions Act of 1982, that deregulated savings and loan associations and allowed banks to provide adjustable-rate mortgage loans. More importantly for us, it prohibits lenders from exercising the due on sale clause in transfers between parents and children. There are some other exemptions set out at the end of this Blog.

In Tariwala v Mack, Defendant Mack owned two adjacent properties at 2957 & 2949 Los Robles Road in Thousand Oaks. Lot 2957 (the Mack property) was in the front along the road, the other lot was in the back. A recorded easement over the Mack property provides the only access to 2949 (what later became the Plaintiff’s property)

Mack lost the rear property in foreclosure. Mack refused to move out of the house and remove garbage, inoperable vehicles, and other personal property, and the Bank had to evict him. The bank eventually sold it to the Plaintiffs. Mack denied an easement existed and refused Plaintiffs access over his property so they could begin clearing their lot and renovating the now-dilapidated house. They filed a lawsuit to confirm the easement, and for a preliminary injunction, which they received. Mac violated the injunction and was found in contempt twice. Mac lost at trial and appealed, claiming that the easement was extinguished when he owned both properties due to the doctrine of merger.

This may be why use of an APN in a summons published in a quiet title action is not sufficient. This problem was pointed out in a recent case where some deeds included a metes and bounds description (Metes and bounds are the boundaries of a parcel of real estate that identified by its natural landmarks and measurements), plus APNs. The APN included area that is not within the metes and bounds description. One party said I own it all, and the other said no.

In XPO Logistics Freight, Inc. v. Hayward Property, LLC, a large property was subdivided into four parcels in a recorded parcel map. But before that, the County Assessor divided the property for (tax purposes) into three parcels with separate APNs shown on an unrecorded assessor’s map. As three numbers were tacked onto four parcels, using an APN does not identify a specific subdivided lot. There were a number of subsequent transactions, resulting in a dispute about what was actually conveyed. Some legal descriptions of the property conveyed included a metes and bounds description plus APNs.

Scruby is the owner of an acre of land and a single-family home at 7429 St. Helena Highway in Napa County, California. Grapevine owns and operates Cosentino Winery located at 7415 St. Helena Highway, consisting of 4 acres just south of Scruby’s property. The only access to Scruby’s landlocked property is over an easement on Grapevine’s property.

The problem deed states that Scruby is granted “[a] nonexclusive easement, 52 feet in width, for road and utility purposes.” The precise boundaries of the easement are set out in the deed by reference to a survey map and are generally described in this litigation as a 52-foot wide corridor from Highway 29 along the northern side of the winery property proceeding westward and ending in a cul-de-sac 100 feet in diameter.

In Shoker v. Superior Court, Ghuman lured the Shokers into investing $1.5 million in an unidentified technology company. He became familiar with the real properties they owned (and rented for income), and then promised the Shokers returns far exceeding those that they were receiving on their rental properties.

The SCAM

In Prune v City & County of San Francisco (67 CalApp 5th 61) the City of San Francisco sought eminent domain and obtained title in 1951 to an 80-foot strip of land to construct a Hetch Hetchy pipeline to construct an underground pipeline conveying water to San Francisco from the grandparents of plaintiffs. The deed reserved certain rights in the plaintiffs’ family’s favor, including among other things the right to use the surface of the property for pasturage and the right to construct roads and streets “over and across” the property “but not along in the direction of the City’s pipeline or lines.” Plaintiffs developed the property into a commercial center, and 75% of the pipeline property had been paved. To allow this development, in 1967 the City granted a revocable permit to use the pipeline property for additional parking and landscaping for a fee of $50 per month. Years later the City wanted to increase the permit fee from $50 to over $4,500, and this lawsuit resulted.

The Deed to the City contained two reservations, fully set out below. In summary,

In King v Wu, a neighbor poured a concrete driveway partly encroaching on the neighboring property. The strip of driveway on the neighboring property (prescriptive strip) is approximately eight inches wide and 90 feet long. Many years later the property suffering the trespass was sold, and the new owners began constructing a metal guardrail over the prescriptive strip. Three days later the Kings filed a complaint seeking to quiet title over the prescriptive strip.

The owners raised one defense—that the property had been “continuously rented out,” and thus, as landlords, they had never been in possession over a period of five continuous years, and could not have filed an action for trespass or ejectment during that time. The owners had several successive leases with different tenants.