Articles Posted in real estate law

Partition is the right of any co-owner to require a court-ordered split of real estate, or its sale and a split of the money. A right of first refusal is a contractual right that, in this context, gives the co-owner the right to buy out his co-tenant before the cotenant can sell to a third party. It has been argued that the right of first refusal implies a waiver of the right to partition. The courts have concluded that it does at first, but if the owner who is not selling is offered the right buy out their partner and declines, the other owner has done all that was required and may seek partition. That was the case in a decision involving a property in Carnelian Bay, on the shore of Lake Tahoe. A belligerent co-owner refused to buy out their partner, the third-party buyer backed out, and the seller filed for partition.

In LEG Investments v. Boxer, LEG was the selling co-tenant who was fed up with the other owner. The Plaintiff claimed that The Boxlers or their guests often failed to clean the Property and the Boxlers refused to pay for reasonable and necessary landscaping, maintenance, cleaning and repairs. In 2003, LEG offered to sell its interest in the Property or purchase the Boxlers’ interest for $750,000. The Boxlers declined both offers.

Next, C.R. Gibb, a real estate investor with many years of experience in the Lake Tahoe real estate market, offered to buy LEG’s interest in the Property for $1.4 million, subject to his approval of the Boxlers as co-owners. As required by paragraph 6.1 of the TIC agreement, LEG transmitted Gibb’s offer to the Boxlers and offered them a right of first refusal to purchase LEG’s interest on the same terms. The Boxlers declined. The critical language: “We will not be exercising our right of first refusal for your bona fide offer of $1,400,000.00.” Gibb figured out that these people were not good roommates, did not approve them, and the deal collapsed. LEG filed for partition.

An easement owner cannot claim another party has trespassed on their easement, because trespass involves interference with the plaintiff’s exclusive possession. Easement holders do not have a right to exclusive possession. They may claim nuisance, but only if the interference is substantial and unreasonable. But they can enlarge their rights by claiming prescriptive rights if they can show that they used the easement in a way that exceeded the use authorized in the grant of easement. These were the conclusions drawn by the court in a recent decision out of Napa County.

In McBride v. Smith, McBride owned a landlocked parcel in a residential neighborhood in St. Helena, Google map here. She was the beneficiary of two recorded easements that run parallel to each other: the Secondary Access Easement encumbering the Smiths’ property; and the Driveway Easement located on property “owned by 1660 Spring Street,” which “remains in full force and provides access to the alley that connects both easements to Spring Street.”

The Smiths were not pleased. First, they constructed “wood dividers” along the “entire length” of the easement. Second, the Smiths erected a heavy chain and large pole at the end of the easement, with the chain extending the entire width of the easement. Third, the pole was bolted to the ground and could not be removed without special tools or a high amount of strength. Fourth, “[b]oth the pole and chain as they exist now obstruct Plaintiff’s access. Even if the chain was removed, the pole would still block Plaintiff’s access.”

In my last post regarding dedication of land I discussed how land may be dedicated for public use in a process is described as implied by law if the public has openly and continuously used the property for five years. Implied by law is similar to the process for a prescriptive easement, but it is not the same. The requirements were established by the series of court decisions up until the legislature took action, enacting new law effective in 1972. The possibility of dedication by use prior to 1972 is still controlled by the common law, but for uses beginning in 1972, the statutes apply. If a party is not sure about the public’s rights to use private property relative to the timing pre and post 1972, based on five years of use prior to 1972, they should contact a Sacramento commercial real estate attorney.

The decision in Gion discussed in Part 1 resulted in a lot of hubbub due to perceived changes in the law. Previously there was a presumption that public use was by way of a license granted by the owner. But Gion held that the court would not rely on such a presumption. In addition, there was no requirement the use be “hostile” and “adverse” in the sense of a prescriptive right – the public did not have to use the property under color of title or claim of right. Nor is it required that the owner be aware of the public use.

The legislature responded by enacting Civil Code section 1009 (set out in full below), which provides that no use of property by the “shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue” to use the property unless the owner made an irrevocable order of dedication that had been accepted by the governing body. Hence, the idea of implied dedication for public use is dead for uses after 1972.

Land may be dedicated for public use, as a road for example, by express dedication, or it may be implied. The process is described as implied in fact if the public uses the property and the acts of the owner indicates that they consent; or implied by law if the public has openly and continuously used the property for five years. Implied by law is similar to the process for a prescriptive easement, but it is not the same. What was required was established under the common law (court decisions) up through the Gion decision, which resulted in the Legislature passing new law to protect landowners. However, the new legislation acted prospectively, meaning that, for uses occurring up through 1971 when the law was passed, Gion governs implied dedication. If a party wants to establish the public’s rights to use private property based on five years of use prior to 1972, they should contact a Sacramento real estate attorney. My next post, Part 2, will cover the 1972 legislation and what is now required to establish an implied by law dedication to the public,

Gion v. City of Santa Cruz involved an old roadbed on the seaward side of West Cliff Drive, between Woodrow and Columbia Streets in Santa Cruz, that had been quitclaimed to the owner and developer of the surrounding property by the city. Most of the area, however, had never been used for anything but the pleasure of the public. Since at least 1900, various members of the public parked vehicles on the level area and proceeded toward the sea to fish, swim, picnic and view the ocean. The city had filled in small amounts of the land and placed supporting riprap in weak areas. The city also put an emergency alarm system on the land and in the early 1960’s paved the parking lot.

The trial court found that :

When co-owners of real estate cannot agree about what to do with the property, they always have a right to file a lawsuit for Partition. Traditionally, this process was designed and used to literally split the property in to “equal” parcels. However, if the value of the property is primarily a building or home, a physical split does not work, so the Judge may order sale of the property and splitting the proceeds. If the parties can agree, they may partition by appraisal, with one buying the other out. Courts have explained that Partition is “the procedure for segregating and terminating common interests in the same parcel of property. It is a “remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.” Sometimes, due to market conditions, it makes sense to ask the court to order the sale of the property immediately, and after the legal process unwinds, to split the proceeds. In a decision this year out of San Francisco the court ordered the sale first, with deciding the split later. However, one of the parties was unhappy when the court of appeals said that they had it backwards- you must first determine the split, then sell.

In Summers v. Superior Court, Summers and Tan were co owners of an investment property. They had a dispute and a partition action was filed. The trial court ordered the property to be partitioned and sold, and the parties’ ownership interests to be determined at a later date. Summers appealed.

The Court first noted that Code of Civil Procedure Section 872.720. Subdivision (a) declares that “[i]f the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property.” (A ruling is interlocutory if it left issues for future determination.) The order of partition “shall order that the property be divided among the parties in accordance with their interests as determined in the interlocutory judgment (emph. added).” (§ 872.810.)

When someone uses real property which they do not own, they are a trespasser, but if enough time passes that trespass can become an enforceable right. There are several flavors of rights- equitable easement, prescriptive easement, and adverse possession that are considered by the courts and real estate attorneys in analyzing these cases. In a recent decision the negligent trespasser struck out on all three.

In Eric Hansen v Sandridge Partners, LP, the Hansens were farmers. They planted their own property plus a disputed area of ten acres. They learned that the neighbors were in talks to sell their property, and Hansen remembered that there was a discrepancy in the line they had been farming, and there was “a lot line adjustment issue.” He spoke with the neighbor about it and they discussed the issue, but there was no conclusion. The Hansens went ahead and put in irrigation on the disputed property, and then planted pistachio trees. The sale closed and the parties still could not resolve anything, so Hansen sued to quiet title to a prescriptive easement. The trial court denied this claim, but did find that the Hansens had established a right to an equitable easement. The court of appeals said no, the Hansens get nothing, no easement, no adverse possession. But I’ll bet that they would have gotten a prescriptive easement if their complaint was drafted correctly.

Equitable Easement