In Blackmore v. Powell, (— Cal.Rptr.3d —, 2007 WL 1475280, Cal.App. 2 Dist., May 22, 2007), a California Court of Appeal considered the issue of whether the grant of an easement violated the Map Act where two landowners’ predecessor in title gave an adjoining landowner’s predecessor in title the right to park automobiles and build a garage on the easement. The Court of Appeal held that the grant of the easement did not give the adjoining landowner a possessory or ownership interest in the property which is subject to the easement and, therefore, did not violate the Map Act.
In 1979, Richard Hunt executed a deed which granted an easement to the owners of an adjacent parcel of land, Thomas and Barbara Young, for “parking and garage purposes.” In 1998, Donna Lisa Powell and Susan Dianna Schmitter purchased Hunt’s property. Powell and Schmitter were aware of the easement when they purchased the property. In 2003, Barry Blackmore purchased the Youngs’ property and subsequently obtained a building permit from the City of Glendale to build a two-car garage on the easement. The proposed garage would only cover about 11 percent of the easement.
In 2004, Blackmore filed a complaint alleging that Powell and Schmitter were preventing him from building the garage. Powell and Schmitter contended that, although Blackmore had the right to park vehicles on the easement, he did not have the right to build a garage on the easement. They argued that construing the easement to give Blackmore the right to build a garage would violate the Map Act. The trial court concluded the easement deed authorized Blackmore to build a garage on the easement and gave him the exclusive right to use the garage. The court further concluded that Blackmore’s exclusive use of the garage on the easement did not constitute a subdivision within the meaning of the Map Act. Powell and Schmitter appealed the trial court’s decision.
The Court of Appeal held that the grant of the easement did not violate the Map Act. “Generally, easements are distinguished from estates in land such as ownership in fee, tenancy in common, joint tenancy, and leaseholds, which are forms of possession of land.” “An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property, which right must be less than the right of ownership.” Powell and Schmitter retain every incident of ownership that is not inconsistent with Blackmore’s easement and the enjoyment of his easement. They may not use their property in a way that obstructs Blackmore’s normal use of his easement.
The court concluded that the lower court properly found that the express language of the deed authorized Blackmore to build a garage and that Blackmore is entitled to exclusive use of the garage. It recognized that an “exclusive easement” constitutes “an unusual interest in land” because it almost amounts to a conveyance of an absolute fee interest in the land. Accordingly, a court will not find an exclusive easement to exist unless there is a clear intention on the grantor to grant an exclusive easement. Here, the grantor expressed such clear intent.
If a grantor grants unlimited use of a parcel on land, the grant would be a conveyance of ownership in fee. However, “an easement incorporating a right of exclusive use may fall short of ownership in fee when the easement is restricted in scope.” Here, the court found that the grant of the easement “does not rise to fee ownership because (1) the rights accorded respondent under the 1979 deed are circumscribed, and (2) the award of exclusive control over the garage — which will occupy only a small portion of the easement — is intended solely to protect these restricted rights.”
The court rejected Powell’s and Schmitter’s argument that the right to erect and maintain a permanent structure such as the garage is inconsistent with an easement which is both created and held by private individuals. Civil Code section 801 does not list permanent structures within its 18 categories of easements. However, section 801’s list is not exhaustive and “numerous California courts have concluded that a ‘private’ easement – that is an easement created and held by private parties – may encompass the right to maintain or use a permanent structure.”
The court held that the easement at issue here does not violate the Map Act. The Map Act governs the subdivision of real property and is designed “to encourage orderly community development, to prevent undue burdens on the public, and to protect individual real estate buyers.” By the plain language of the Act, it encompasses “the division of real property into units that constitute possessory interest in land, including leaseholds, but not the creation of the private easement at issue here.” The grant of the easement “does not divide or sever the property into distinguishable possessory estates or interest,” but instead merely grants Blackmore the right to use a portion of Powell’s and Schmitter’s land in a restricted manner. Because no ownership interest in the land was transferred by the deed granting the easement, the “1979 deed did not create a subdivision within the meaning of the Map Act.”
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