REAL ESTATE LAW

Leadership always contains far more down cycles than ups. Lincoln, Jefferson, Washington, Wilson, and both Roosevelts experienced setbacks that would have discouraged (the) less resilient.

      — James O'Toole, IBD, 8/19/05


Sunday, November 25, 2007

Murphy v. Burch - No easement by necessity for the owner of a landlocked parcel.

This is a somewhat unusual case in that the court left a landlocked parcel landlocked reversing the trial court’s grant of an easement by necessity. It appears that the critical fact was that the land transfer arose from a federal land patent.  In so reversing, the court of appeals explained that the settled California rule is that a right-of-way of necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way as when the claimants’ property is landlocked [citations] and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity. Regarding the first requirement, one court has held that a way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. . . .”’ [Citation.] The philosophy behind this presumption is that the demands of our society prevent any man-made efforts to hold land in perpetual idleness as would result if it were cut off from all access by being completely surrounded by lands privately owned. A preliminary requirement to establishing a way of necessity is that the dominant and servient tenements be under the same ownership at the time of the conveyance giving rise to the necessity.

In reversing the trial court’s judgment, the Court of Appeal ruled that it is the existence of the power of eminent domain that is relevant, because that existence—and not the exercise of the power—vitiates the always-critical requirement of “strict necessity” for the creation of an easement by necessity. 

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Murphy v. Burch slip decision

Monday, September 03, 2007

Starrh and Starrh Cotton Growers v. Aera Energy LLC

In this interesting decision, the Court of Appeal reversed a trial court decision in favor of the plaintiff.  The facts demonstrated that subsurface trespass resulting from migration of waste water produced from oil production activities when naturally occurring water high in salts and other minerals pumped out of the deep ground in conjunction with the extracted oil was disposed of by discharge into unlined percolation ponds and then percolated down, moved into the underlying aquifers, and over time migrated into the aquifer underlying neighboring property, reducing the quality of the subsurface water, was a continuing trespass rather than a permanent nuisance, since abatement by means of a change in defendant’s water discharge practices was possible. The Jury’s consideration of the restoration damages merited an instruction, at a minimum, that if it determined damages should be awarded it must decide how much it would cost to restore the groundwater under the neighboring property to its original state; whether the restoration costs were reasonable in light of all the competing interests; that it could deny damages if it concluded the restoration costs would be unreasonable; and that diminution in value may be a legitimate measure of damages where restoration costs are unreasonable. Profits from oil production can be considered benefits obtained within meaning of statute providing for recovery of such benefits in an action for continuing trespass. CCP section 1021.9, the code section providing for the recovery of attorney fees in successful action for trespass to land under cultivation applies to subsurface trespass to a right that runs appurtenant to cultivated land.

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Starrh and Starrh Cotton Growers v. Aera Energy LLC

Sunday, August 26, 2007

Ruelas v. Hernandez - Resulting trust vests property ownership in parents of bride.

Third parties purchased home through record title owner, who then claimed the property as his own by way of dissolution proceeding.  Trial court and the appellate court found that a resulting trust arose by the circumstances found that the third party was the owner of the house, with the wife, the record title owner, as the trustee. When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made. “The trust that is ‘presumed to result’ from this situation is termed a ‘resulting trust’; its purpose is to enforce the intentions of the parties. It is distinguished from a constructive trust, which is typically imposed to rectify fraudulent behavior.” (Johnson v. Johnson (1987) 192 Cal.App.3d 551, 555-556.) “A resulting trust differs from an express trust chiefly in that (1) it arises by operation of law, without an expressed intent, and (2) the resulting trustee ordinarily has no duty other than to transfer the property to the person entitled. [Citations.]’ (13 Witkin, Summary of Cal. Law (10th ed. 2005) Trusts, section 311, p. 885.)

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http://www.mcmillanlaw.us/wsn/gallery/link.php?id=20

Sunday, August 26, 2007

Blackmore v. Powell: An unusual easement decision.

Barry Blackmore initiated an action against appellants Donna Lisa Powell and Susan Diana Schmitter for a declaration that he was entitled to build a garage on an easement appurtenant to his property, and for other relief, including a permanent injunction. Following trial, a judgment was entered in Blackmore’s favor on his claims for declaratory and injunctive relief.  The court of appeal affirmed, ruling that the deed granting an easement “for parking and garage purposes” entitled the holder of the easement (Blackmore) to construct a garage on a portion of the easement. Contrary to the suggestion of the appellant, the Subdivision Map Act does not require that a property owner, in order to grant an easement that permits the construction of a permanent structure such as a garage, obtain local approval for the easement or record a map.  This case is significant in that the court allowed exclusive use of the property below the garage structure, without a finding that the dominant tenement holder (Blackmore) was a fee simple owner.  See, Raab v. Casper (1975) 51 Cal.App.3d 866, 876-877).

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http://www.mcmillanlaw.us/wsn/gallery/link.php?id=18

Tuesday, August 14, 2007

Patel v. Liebermensch

In this case from the San Diego trial court, Judge Joan Lewis presiding, Court of appeal reversed the judgment in a case alleging a breach of a contract of sale ruling that an enforceable option contract specifies all essential terms of purchase and sale, such that upon the exercise of the option, a binding and enforceable contract of sale is created. The court of appeal ruled it was error for the trial court to order specific performance where the purported agreement failed to specify such essential terms as length of escrow and evidence did not support a conclusion that parties would have agreed to additional terms added by trial court as reasonable.  Court ruled that trial court improperly dismissed the unlawful detainer action.

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Thursday, August 02, 2007

Opp v. St. Paul Fire & Marine Insurance rules that contractors must be licensed.

Although the president of the company was a licensed contractor, where building contract was entered into on behalf of corporation that was not a licensed contractor, Business and Professions Code Sec. 7031, prevented the contractor from recovering for unpaid services. Section 7031 which precludes recovery under contract or payment bond by unlicensed contractor, applied, even though corporation’s president was a licensed contractor. The unlicensed corporation did not substantially comply with Sec. 7031 by obtaining license after it completed performance of the contract.  This case demonstrates the danger of working without a contractors license.

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http://www.mcmillanlaw.us/wsn/gallery/link.php?id=10