Published On: June 2nd, 2015 / Categories: communication /

a failure to communicate

A failure to communicate

In the ‘60s movie Cool Hand Luke, the Captain (portrayed by Strother Martin) explained that “a failure to communicate” was the reason for his sudden and violent beating of Paul Newman’s Luke.   A recent decision by the California Court of Appeal for the First Appellate District demonstrates that “a failure to communicate” between neighboring homeowners regarding matters of mutual concern affecting their respective properties can also produce calamitous results.

Right to use a driveway

In Richardson v. Franc, handed down earlier this year, the Court of Appeal held that the owners of a home, who had the right to use a driveway over their neighbors’ property for access to their home under a recorded access and utilities easement, were also entitled to an implied license to use their neighbors’ property within the easement area to maintain the landscaping, irrigation and lighting that had been installed along the driveway. Furthermore, since those improvements were first installed by the homeowners’ predecessors more than twenty years’ earlier, and because the current homeowners had not only maintained but also added to those improvements after that property had been purchased by the current neighbors, who owned the property for six years before objecting to those activities, the court ruled that the their implied license had become irrevocable, subject to equitable limitations.

This saga began in 1989, when the Poksays began building their home on vacant land next door to the Schaefers’ property in Novato. The Poksays’ improvements included the installation of a 150’ driveway within a 30’ access and utilities easement area across the Schaefers’ property. Over the ensuing years, the Poksays and their successors in interest, Richardson and Donetti, who acquired the property in late 2000, installed and maintained landscaping, irrigation and lighting next to the driveway within the easement area. In 2004, the Francs acquired the Schaefers’ property, and resided there for around six years without ever discussing with Richardson and Donetti their use of the easement area over the Francs’ property, even as Richardson and Donetti, with the Francs’ knowledge, continued to improve and maintain the easement area.

Cut the irrigation and electrical lines

Without notice, in late September or early October 2010, the Francs cut the irrigation and electrical lines along both sides of the driveway, including irrigation lines that watered both the easement area over the Francs’ property as well as the property of Richardson and Donetti. In addition, water valve pumps feeding the irrigation lines were taken apart. On October 13, 2010, the Francs, through counsel, wrote to Richardson and Donetti demanding that they remove all of the landscaping and supporting systems from the easement area within five days. Richardson and Donetti then filed a lawsuit against the Francs for an irrevocable license and equitable easement, along with declaratory and injunctive relief; the trial court granted Richardson and Donetti a preliminary injunction restoring the irrigation system.

Denied  request for an equitable easement

After a bench trial, the trial court denied Richardson and Donetti’s request for an equitable easement. The trial court did, however, grant Richardson and Donetti and their successors in interest with respect to their property an irrevocable license in order to maintain and improve the landscaping, irrigation and lighting within the easement area. The trial court’s decision was based on the ground that, regardless of the terms of the express recorded easement, it would be inequitable to deny Richardson and Donetti and their successors in interest an irrevocable implied license given the amount of time and money they had spent improving the easement area and maintaining those improvements, as well as the years of acquiescence on the part of the Francs.

On appeal, the court upheld the trial court’s decision to grant an irrevocable implied license, and ruled that it was sound, equitable and supported by substantial evidence.   The court noted that a license, unlike an easement, is not an interest in real property, but is only a mere grant of permission to allow a licensee to perform acts on someone else’s property pursuant to the owner’s consent, which can be either express or implied.   Although licenses are generally revocable, they can become irrevocable when the property owner knowingly permits the licensee to repeatedly perform acts on the owner’s land, and the licensee expends time and money on improvements with the owner’s knowledge, based on a reasonable reliance that the license will continue.   The appeals court ruled that the trial court’s finding of facts supported its decision to grant an irrevocable implied license to Richardson and Donetti and their successors in interest, and that the trial court’s denial of an equitable easement was not inconsistent with its grant of an irrevocable implied license. Finally, the appeals court held that the trial court did not abuse its discretion, based on the facts, not to require Richardson and Donetti to remove the improvements when the property is transferred, given the permanent nature of the improvements and Richardson and Donetti’s substantial investment in time and money on those improvements.

Reading between the lines of this case, it seems clear that the Francs were penalized for their failure to speak with Richardson and Donetti regarding their concerns about the improvements in the easement area before taking drastic action. Had the Francs been more attentive in attempting to protect their property rights before cutting the irrigation and electrical lines, the outcome could well have been different; it is even possible that this issue could have been surfaced in the inspection and title review process during their acquisition of the property. Thorough due diligence and the assistance of an experienced real estate attorney can be invaluable in avoiding these situations.

The court’s decision in this case can be found here.

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