What happens when an easement agreement does not specifically state all of the purposes for which it may be used? How do we know what the parties intended? If not specifically stated, is the scope of the easement based upon its historical use or a reasonable use? A recent case of Zissler v. Saville addressed these issues and confirmed what a “bona fide purchaser” may be subject to due to a course of conduct by the parties. (29 Cal.App.5th 630 (2018)).
In Zissler, two neighbors brought actions against the other to confirm the scope of a recorded easement affecting both of their properties. The easement provided “Grantee access, ingress and egress to vehicles and pedestrians over Grantor’s real property to Grantee’s real property.” The easement further specified the exact dimensions of the easement area for which such use rights existed. The owner of the property burdened by the easement (Zissler) alleged that the easement was always used solely for landscaping purposes regardless of the language of the easement and should be limited to such use on an ongoing basis. The new owner of the property which benefited from the easement (Saville) argued that the easement clearly provided for access, ingress and egress and Saville had purchased the property relying on such right for construction of his home. Since he had recently purchased the property, Saville did not have a reason to know of this landscaping use limitation based upon the plain language of the easement.
The Court held that an easement for a broad grant of right of way use is limited only by its reasonable use based upon the scope set forth in the written agreement and not its historical use through the parties’ course of conduct. They found that the easement was specific enough in stating the particular uses and the particular area burdened. The Court noted that if the easement had been more general without the specifications of particular uses and a set easement area then the scope of the easement could have been limited to its historical use and not what may be reasonable based upon the plain language. In its analysis the Court considered evidence from the prior owner of the benefited property (Saville’s Property) stating that the parties intended the easement only for landscaping purposes. The Court found, however, that the relevant intent of the parties is evidenced by the written words of the parties and not either party’s subjective intent.
This case also discusses the issue of easement analysis in the context of a “bona fide purchaser” since Saville was a recent purchaser of the benefited property. A “bona fide purchaser” is one who makes a payment of value for property, in good faith and without actual or constructive notice of another’s rights to that property. The Court found Saville met the first two requirements and inquired as to whether he had actual or constructive notice of the landscaping limitation of the easement scope based on the fact that Saville had been notified by the seller of the benefited property that the easement had been used for gardening. The Court found that such statement was not, on its own, knowledge of any limitation since the prior owner did not state that landscaping was the only permissible use of the easement, only that it had been used that way in the past. Without any further knowledge of the limitation, the Court found the easement language to be express and unambiguous for which Saville, as a “bona fide purchaser”, could reasonably rely.
The Zissler case highlights that although historical use can be an important factor in cases with general easements, the relevant analysis with express and unambiguous easement agreements is the reasonable use based upon the plain language. If an easement document is not explicit with regard to scope, the court may look to the parties’ historical course of conduct to further define and possibly limit its permitted uses. It seems an additional factor considered here in finding for reasonable use rather than historical use is because a “bona fide purchaser” was involved in the dispute. The Court found that as long as such agreement is fairly express and unambiguous in its terms, if a party purchases a property without specific knowledge of easement limitations attributable to historical course of conduct by the parties, the purchaser can reasonably rely on the plain language of the easement for its scope. This implies that if this dispute was between the original parties to the easement, the Court may have considered historical use in its analysis of scope, although the case was silent on that issue.
Authored by Reuben, Junius & Rose, LLP Attorney Lindsay Petrone
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.