The Top Ten Real Property Cases of 2017
| Publication year | 2018 |
| Author | Basil ("Bill") S. Shiber and Star Lightner |
Basil ("Bill") S. Shiber and Star Lightner
Bill Shiber
Basil ("Bill") Shiber is a shareholder with Miller Starr Regalia. His practice focuses on disputes involving secured transactions, commercial leasing, condemnation, and land use. He is also a contributing author of Chapter 23, "Inverse Condemnation," Chapter 24, "Eminent Domain," and Chapter 30, "Community Redevelopment," of Miller & Starr, California Real Estate 4th.
Star Lightner
Star Lightner is senior counsel with Miller Starr Regalia. She is senior editor of Miller & Starr, California Real Estate 4th, and a contributing author of Chapter 11, "Holding Title," Chapter 19, "Landowners' Liability," Chapter 31, "Construction Law and Contracting."
Selecting the "Top Ten" real estate cases in any year is a tricky proposition given the wide range of topics addressed by the courts each year. In 2017, there were fewer significant real estate decisions overall than in past years, but still enough significant ones to populate our list (including a handful of Honorable Mentions). Over the past year, the California Supreme Court addressed such varied topics as whether non-recreational use of private property can ripen into a dedication to public use, whether and how a landowner can rely on a permit to commence a development project while still contesting conditions of approval imposed by a permitting agency, and whether a duty of care is owed by a landowner to guests whose routes of access to parking require crossing a public street. Our list also includes a United States Supreme Court case addressing how to identify the "denominator parcel" for purposes of determining the proportional injury to landowners' property rights in regulatory takings cases.
The annual crop of California Court of Appeal decisions impacting real estate was quite diverse as well. Some cases addressed "bread-and-butter" issues such as the distinction between privity of estate and privity of contract in the leasing context, whether the pre-litigation procedures of the Right to Repair Act apply to common law tort and contract clauses, and whether a city can restrict the presence of chain stores or "formula retail" establishments by ordinance. There were also more esoteric but nonetheless significant decisions, including the applicability of documentary transfer tax where there is no recorded instrument of conveyance, whether assertion of an affirmative defense can invoke a contractual attorneys fees provision, and whether anti-deficiency restrictions apply to a "sold-out" junior lienholder.
All of these cases, addressed below, along with several "Honorable Mentions," were prime candidates for inclusion, given our standard: widespread impact on the practice of real property law in California. As always, selecting cases for inclusion is a subjective affair, but we offer the following as the most significant real estate cases of 2017.1
Non-recreational use of private noncoastal property by the public cannot result in an implied offer of dedication.
As we mentioned in our 2015 Top Ten Article,3 this case was accepted for review by the California Supreme Court with respect to whether a post-1972 non-recreational use of private land by the public can result in an implied offer of dedication for continued public use.
[Page 5]
The background: After the California Supreme Court's seminal Gion-Dietz decision4 in 1971, the Legislature enacted Civil Code section 1009, which limits the circumstances in which courts may find implied dedication of private coastal or non-coastal property. This statute explicitly provides that "no use" of private non-coastal property after its 1972 effective date may give rise to a "vested right" in the public to continue using the property permanently, unless the property owner makes an express, irrevocable offer to dedicate the property to public use.5 The present case considers the application of this statute to the claim that public use of a roadway after 1972 had ripened into an offer of dedication.
The dispute involved a landowner's right to access one property by driving on two de facto roadways that crossed a neighbor's land rather than on other less convenient routes, where there was neither an express offer dedicating the roadways to public use nor a viable claim of a private easement allowing the use of the roadways by the particular landowner in question. The trial court found an "implied in law" offer to dedicate had occurred due to various related declarations and grants of easements to others, and because the public had used the roadways for more than the prescriptive period of five years. It also concluded that section 1009 was inapplicable to bar any finding of implied dedication because the land at issue was not coastal property, and "section 1009 does not restrict the implied dedication of public roads for non recreational uses." The Second District Court of Appeal reversed the trial court, holding that the language of section 1009(b) unambiguously bars all public use, not just recreational use, from developing into an implied dedication.6 The question posed to the Supreme Court, therefore, was whether section 1009 applied to bar implied dedication based on all public uses, or just public recreational use.
As adopted in 1971, Civil Code section 1009 specifically recited the Legislature's findings that it was in the best interest of the State to encourage owners of private real property to make their lands available for public recreational use, but that the ability to claim implied dedication through public use would discourage private owners from allowing such use. (Due to the distinct nature of coastal property and the public interest in access to the shoreline, section 1009, with some exceptions, allows for coastal property to be a subject of implied dedication by public use.) Subdivision (b), as to non-coastal property, specifically provides that regardless of whether the owner had recorded a notice of consent to use of property or otherwise authorized such use, "no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use." Citing this statutory language, the Supreme Court observed the prohibition on an implied offer of dedication arising from public use is "written in categorical terms: 'No use of the subject property after March 1972 shall ever ripen' into an implied dedication of the property by the public."7
In light of this categorical language, the Court dismissed appellants' arguments that the Legislature's primary concern was to encourage landowners to open their property to public recreational use: "the Legislature's expressed concern with public recreational use of private lands in subdivision (a) does not mean that a court may add this concept as a separate requirement in the operative provisions of the statute [subdivision (b)] . . . when the Legislature chose not to do so."8 The Court noted that despite 40 years of opportunities to clarify the statute, section 1009 had never been amended since its enactment in 1971.
Comment: At its core, this case is a fairly simple example of the court construing a statute by its plain and express words. Of note, the statute still operates prospectively only, forbidding only reliance on post-1972 public use to support a claim of implied dedication. Thus, assuming historic evidence of pre-1972 public use can be adduced, it would be theoretically possible to establish an offer of implied dedication as a result of such pre-1972 uses.
In addition, while the Court recognized that the Legislature intended section 1009 to overturn the Gion decision, it specifically declined to address whether a common law offer to dedicate a roadway could be accepted by public use, because it considered only whether there had been an implied offer by public use. Although not explicit in the opinion, this leaves open the possibility that section 1009 would be inapplicable to a claim that an implied or express offer of dedication resulting from some other conduct by the owner (as distinguished from conduct by the public in using the owner's property) could constitute an offer of dedication that, in turn, could be accepted merely by public use.
Finally, while "an express written irrevocable offer ofdedication" is not defined by statute or addressed in case law, a document recorded by the landowner would presumably qualify.
2. Lynch v. California Coastal Commission9[Page 6]
Landowners forfeit the right to challenge a permit's conditions when they take its benefits.
This case tests, and essentially upends, the notion of preserving one's objections to permit conditions imposed by a government agency while simultaneously complying with those conditions under protest.
In an effort to protect several bluff-top homes along the Pacific Ocean shoreline in Encinitas, landowners sought to demolish the original erosion control structure that was destroyed in a storm and replace it with a seawall and mid-bluff geogrid (synthetic soil reinforcement) protection, as well as to rebuild the lower portion of a bluff-face staircase. Because of its location, the project required a permit from the California Coastal Commission. The permit that issued allowed only the demolition plus seawall and geogrid installation, but limited the permit's term to 20 years, required the landowners to apply for a new permit to remove the seawall, change its size, or extend the authorization period, prohibited future bluff-top redevelopment from relying on the seawall as a source of geologic stability or protection, and prohibited the reconstruction of the stairway.
The landowners objected to these conditions during the application process, but...
To continue reading
Request your trial