61 Cal.App.5th 717
Cal. Ct. App.2021Background
- Two adjacent Burlingame parcels (El Camino: 789 El Camino Real; Willow: 1507–1509 Willow Ave.) were under common ownership for ~50+ years; tenants of El Camino used portions of Willow for driveway access, eight parking spaces, garbage, and a garden.
- In 2011 foreclosure sales split ownership: JPMorgan acquired Willow; California Pacific Bank (the Bank) acquired El Camino. The Bank and El Camino tenants continued the same uses on Willow.
- In 2017 Husain purchased the Willow property; he received disclosures and signed indemnity/hold-harmless agreements that described the Bank’s claimed prescriptive easement before closing.
- Husain sued to quiet title; the Bank cross-complained for a prescriptive easement over the driveway, eight parking spaces, garbage area, and garden.
- At bench trial the court (sitting in equity) found the Bank’s use open, notorious, continuous, and hostile for the statutory five-year period and entered judgment granting a nonexclusive prescriptive easement; Husain appealed.
- The Court of Appeal affirmed, rejecting Husain’s argument that prior permissive use remained permissive after the split in ownership absent an express, unequivocal repudiation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bank proved a prescriptive easement | Husain: uses began permissively and stayed permissive; no clear, unequivocal repudiation, so no adverse use | Bank: after 2011 split, Bank and tenants used Willow openly, continuously, and without permission; establishes adverse use for 5+ years | Court: Judgment affirmed — elements met (open, notorious, continuous, adverse for five years); prescriptive easement granted |
| Effect of prior common ownership on prescriptive period | Husain: permissive accommodation by prior common owner continued and required express revocation to become hostile | Bank: prescriptive period begins after unity of ownership is severed; no evidence of permission from post-sale servient-owner (JPMorgan) | Court: common ownership period does not count; use after severance was constructive notice of adverse use and sufficient to start prescriptive period |
| Standard of review | Husain: contends legal conclusion review (de novo) because he does not contest factual findings | Bank: trial court exercised equitable powers; appellate review is abuse of discretion | Court: abuse-of-discretion standard applies to equitable decision; affirmed as within permissible range |
| Relevance of Husain’s pre-purchase notice | Husain: argues unfair to impose easement on him | Bank: purchaser was on notice (disclosures, indemnity) and equities support enforcement | Court: Husain had notice (disclosures, hold-harmless); equity supports ruling; costs awarded to Bank |
Key Cases Cited
- Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal.3d 564 (defining elements: open, notorious, continuous, adverse for five years)
- McBride v. Smith, 18 Cal.App.5th 1160 (adverse use = without express or implied recognition of owner’s rights; factual inquiry)
- Oglesby v. Hollister, 76 Cal. 136 (cotenant adverse possession may be inferred from hostile acts; constructive notice)
- Richardson v. Franc, 233 Cal.App.4th 744 (trial court’s equitable powers; conveyance revokes licenses burdening property)
- Brown v. Ware, 630 P.2d 545 (Ariz.) (prescriptive period begins after unity of ownership is severed; permissive use during unity does not bar later adverse use)
- Madden v. Alpha Hardware & Supply Co., 128 Cal.App.2d 72 (discussed by parties on permissive-use/repudiation issue)
- Brandon v. Umpqua Lumber & Timber Co., 26 Cal.App. 96 (early authority on requirement of clear repudiation for permissive use to become hostile)