Letter from the Editor
| Publication year | 2022 |
| Author | Written by Norm Chernin Editor-in-Chief |
Written by Norm Chernin Editor-in-Chief
I have been practicing law for more than fifty years. For almost all that time, my focus has been on real property law. Recently I have been musing about how things that I thought were immutable have been altered.
As we all learned in law school, there is a good deal of formality associated with interests in real property, especially with aspects of holding title to real property. The integrity of our system of landholding would seem to require adherence to recognizable rules that apply to owning, transferring, and encumbering of real property. However, just like constitutional law which is based on a single document drafted at a particular time in history, adjustments are necessary to deal with changes in circumstances that could not have been envisioned by the original drafters of the Constitution or by the creators of the rules affecting real property.
One of the hoariest of these long-standing governing doctrines is the Rule Against Perpetuities. To refresh your memories, this doctrine states simply that an interest in real property must vest, if at all, within twenty-one years from the death of a life-in-being at the time it was created. But as we all know, there is nothing simple about applying this rule. For instance whose life?—e.g., the last surviving child of a specified person. In fact, interpreting and applying the rule to specific circumstances can be so difficult that a California court held a number of years ago that it did not constitute legal malpractice to fail to properly apply it.
To overcome the difficulties in trying to comply with the rule, there is now available for enactment by states a Uniform Act to establish a ninety-year safe harbor. California already has a statute creating a sixty-year period. The most frequent application of this protection is to leases or contracts of sale which state that the term does not commence until completion of improvements.
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Another evolving area has occurred with respect to easements. We all learned that the creation of an easement requires a grantor, a grantee, a description of the location and purpose of the easement, and a term.
Determining location is straight-forward if it consists of a legal description. But often it is not possible to create a precise delineation of the portion of property to be covered by the easement. Over time changes to topography or use of the affected property may occur which make the encumbered area more difficult to ascertain. I recall an instance where I needed to create an easement for out-of-bounds areas along a golf course. Adjacent residential lots with views from above the course had not yet been graded. It could be expected that actual grading would deviate from the grading plan for civil engineering reasons. My solution was to create an easement on the abutting residential lots extending a specified width from the plotted golf course lot rather than using the measurements of the residential lot itself and also to provide a similar encroachment easement for the residential lots onto the golf course lots where the actual slope extended beyond the boundaries of the residential lots.
Even the purpose of the easement could be problematic as technology opened up new interpretations of what constituted access or similar activities to those delineated in the document. One example is an easement for utility purposes granted many years ago in which installation of fiber-optic cable is now proposed.
Lastly, a specified duration of the easement was often ignored so that easements appear to last potentially forever. As part of the Marketable Record Title Act in...
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