Syverson v. Kuhn CA4/1

Filed 11/23/15 Syverson v. Kuhn CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KORTNEY SYVERSON, D067263
Plaintiff, Cross-defendant and
Respondent,
(Super. Ct. No. 37-2011-00102504-
v. CU-OR-CTL)
R. DAVID KUHN, Individually and as
Trustee, etc.,
Defendant, Cross-complainant and
Appellant;
MICHAEL B. EMERY, Individually and as
Trustee, etc. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, Randa
Trapp, Judge. Affirmed.
Vantage Law Group and Michael H. Riney for Defendant, Cross-complainant and
Appellant R. David Kuhn and for Defendants and Appellants Michael B. Emery and
Linda G. Emery.
Steven J. Roberts and Steve J. Roberts for Plaintiff, Cross-defendant and
Respondent.
This case involves four northern and four southern neighboring hillside properties.
Grant deeds on the southern properties contained restrictions limiting residences thereon
to a single story. We conclude the use restrictions, which were enforceable by a power of
termination, expired due to the northern property owners' failure to record a notice of
intent to preserve their interest under the Marketable Record Title Act (Civil Code,
§ 880.020 et seq.) (the Act). (Undesignated statutory references are to the Civil Code.)
We also conclude the use restrictions were not alternatively enforceable as equitable
servitudes.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties
R. David Kuhn, Michael B. Emery, and Linda G. Emery (together, Appellants)
own four hillside lots in the Clairemont area of San Diego, California (the northern lots).
The northern lots have views of Mission Bay. In 2009, Kortney Syverson purchased a
home to the south of the northern lots, which he intended to remodel to add a second
story. Janice Sopher, Bradley and Kim Johnson, and Ruth Crowell also own properties
south of the northern lots (together with Syverson's property, the southern lots).
Use restrictions in grant deeds on Syverson's property limited any residence on the
property to a single story. Syverson sued Appellants and the owners of the other southern
lots to invalidate the restrictions on his property. The trial court entered default against
the southern lot owner defendants. They are not parties to this appeal. Thus, this dispute
is between Syverson (owner of one of four southern lots) and Appellants (owners of the
northern lots).
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History of the Properties
In 1949, Betty Rotner acquired the southern lots through two grant deeds from
Evelyn Wurzell and Union Title Insurance and Trust Company. Both deeds contained
use restrictions that ran with the land and limited the properties such that they could "be
used for residential purposes only and such residence will be a single story with shed-
type roof, or if gabled roof, the height of said gabled roof to be no more than two feet"
(Union/Wurzell Restrictions). A violation of these restrictions would cause the land to
revert and revest in the grantor, its successors, or assigns.
Rotner subsequently transferred Lot 5, which is now Syverson's property, to
Valentine Putman and Alice Putman. That grant deed also included restrictions (Rotner
Restrictions): "Any residence placed on this property must be single story with shed type
roof or with a Gable roof providing the Gable shall not be more than two feet high." (The
Rotner Restrictions and Union/Wurzell Restrictions are collectively referred to as the Use
Restrictions.)
In 1951, Kuhn's parents purchased the northern lots. Approximately one year
later, they sold two of the four northern lots to the Emerys' family. The northern lots
have remained in the Kuhn and Emery families since that time.
Syverson acquired his property in 2009. The grant deed to him did not include or
reference the Use Restrictions.
The Prior Action
In 1976, Sopher's predecessor in title, John P. Suitts, Jr., filed an action to
invalidate the Union/Wurzell Restrictions (the Prior Action). Michael Emery was a party
to that action. Suitts alleged the grant deed upon which he took title did not reference the
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Union/Wurzell Restrictions. He argued the restrictions should not be interpreted as
conditions subsequent with right of reverter and instead were covenants, which could not
be enforced against him.
Michael Emery argued in his trial brief that the Union/Wurzell Restrictions
"reserved a valid and enforceable reversionary interest (called a 'right of re-entry' or
'power of termination') in the grantors" and their successors and assigns. He specifically
took the position that the Union/Wurzell Restrictions did not create restrictive covenants
or equitable servitudes because those concepts leave no reversionary interest in the
grantor and thus the grantor could not regain title upon a breach.
In 1977, the trial court entered judgment, concluding the Union/Wurzell
Restrictions were valid and enforceable conditions subsequent. The trial court found the
conditions subsequent "reserved in the Grantors, their heirs, successors and assigns, a
reversionary interest ('right of re-entry')," which was now held by Michael Emery.
The Current Action
In 2011, Syverson sued Appellants and the other owners of the southern lots for
declaratory relief to invalidate the Use Restrictions. In his original complaint, Syverson
stated that "[d]uring the course of the purchase of [his] [p]roperty, [he] became aware of
a grant deed recorded on August 26, 1949, which transferred the [p]roperty from Evelyn
Rose Wurzell to Betty Rotner." That grant deed contained the Union/Wurzell
Restrictions. Syverson subsequently amended his complaint multiple times. In the
operative second amended complaint, Syverson asserted causes of action for declaratory
relief and to quiet title. He alleged that to the extent the court construed the Use
Restrictions as conditions subsequent with right of reverter, they were invalid, void and
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unenforceable under the Act, and enforcement of the Use Restrictions was unjust,
oppressive and inequitable.
Kuhn cross-complained against Syverson, alleging Syverson planted a row of
cypress trees along the border of Syverson's and Kuhn's properties, which partially
obstructed Kuhn's view of Mission Bay. Kuhn also sought declaratory relief regarding
utility and sewer easements over Syverson's property. The Emerys were not parties to the
cross-complaint.
In May 2013, Syverson moved for summary adjudication on each cause of action
in the second amended complaint. He argued that because the judgment in the Prior
Action concluded the Use Restrictions were conditions subsequent with right of reverter,
the Use Restrictions expired under the Act due to Appellants undisputed failure to record
a notice of intent to preserve their interest. Syverson also asserted that he was unaware of
the Use Restrictions until after he purchased his property.
Appellants opposed summary adjudication, arguing the Use Restrictions were
enforceable as an equitable servitude and thus a notice of intent to preserve their interest
was not required under the Act. Appellants also argued that although the Use
Restrictions were not technically drafted as an equitable servitude, they could
alternatively be enforced as such because Syverson purchased his property with actual or
constructive notice of the restrictions. Appellants contended Syverson had constructive
notice based on the undisputed fact that the deeds containing the Use Restrictions were
recorded before Syverson purchased his property. To support their argument concerning
Syverson's actual notice, Appellants pointed to the statement in his original complaint
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that he became aware of the 1949 deed from Wurzell to Rotner "during the course of the
purchase" of his property.
The trial court granted summary adjudication in favor of Syverson, finding the
Use Restrictions were unenforceable. The court concluded that the Use Restrictions
expired as a result of Appellants' failure to record a notice of intent to preserve their
interest as required under the Act. The court further found that the Use Restrictions could
not be enforced as an equitable servitude because they expired before Syverson
purchased his property due to the passage of time and lack of recording of a notice of
intent under the Act, and Syverson denied knowing of the restrictions. The court
concluded that Syverson's statement in his original complaint that he became aware of the
Union/Wurzell Restrictions during the course of his purchase was insufficient to create a
triable issue of fact regarding notice. Lastly, the court found that Appellants were
collaterally estopped from claiming their interest constituted an equitable servitude
because they argued the opposite in the Prior Action.
DISCUSSION
I. Appealability
Appellants' notice of appeal indicates their appeal was taken from a judgment after
an order granting summary adjudication and a subsequent stipulation. Based on the
stipulation, the judgment dismissed Kuhn's cross-claim for private nuisance without
prejudice pursuant to the terms of the parties' settlement agreement. That settlement
agreement provided that if Appellants prevail on their appeal, and "the matter is sent back
to the trial court for trial, the Judgment shall be of no force and effect and is voided."
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The Court previously asked Appellants to submit letters explaining why this
appeal should not be dismissed on the ground the appealed judgment was not yet final
due to Kuhn's dismissed yet unresolved cross-claim for private nuisance. After
considering the parties' responses, the Court concluded the appeal could proceed as to the
Emerys because they were not parties to the cross-complaint and the judgment was final
as to them. As to Kuhn, the Court deferred consideration of his request to treat his appeal
as a petition for writ review. We now consider that issue.
Kuhn argues that his claim for private nuisance was collateral to the main issue in
the case of whether the Use Restrictions are enforceable. He claims the summary
adjudication in favor of Syverson "substantially mooted" his private nuisance claim
because "the proposed second story addition to . . . Syverson's property would have the
same practical impact as a ten foot hedge adjacent to . . . Kuhn's property." Kuhn also
contends he was aggrieved by the summary adjudication order and would potentially be
bound by the outcome of the Emerys' appeal.
Resolution of the Emerys' appeal will necessarily impact Kuhn as the same facts
and issues are involved. Moreover, judicial economy would not be served by deciding
the matters of these Appellants separately. Accordingly, we exercise our discretion to
treat Kuhn's appeal as a petition for writ review and resolve Appellants' claims in a single
proceeding. (See Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 710, fn. 1.)
II. Standard of Review
In evaluating the propriety of a grant of summary judgment our review is de novo,
and we independently review the record before the trial court. (Branco v. Kearny Moto
Park, Inc. (1995) 37 Cal.App.4th 184, 189 (Branco).) In practical effect, we assume the
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role of a trial court and apply the same rules and standards that govern a trial court's
determination of a motion for summary judgment. (Lopez v. University Partners (1997)
54 Cal.App.4th 1117, 1121-1122.)
" 'A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.' "
(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250.) Because the
granting of a summary judgment motion "involves pure questions of law, we are required
to reassess the legal significance and effect of the papers presented by the parties in
connection with the motion." (Ranchwood Communities Limited Partnership v. Jim Beat
Construction Co. (1996) 49 Cal.App.4th 1397, 1408.) We strictly construe the evidence
of the moving party and liberally construe that of the opponent, "and any doubts as to the
propriety of granting the motion should be resolved in favor of the party opposing the
motion." (Branco, supra, 37 Cal.App.4th at p. 189.)
The law of summary judgment provides courts with a mechanism to cut through
the parties' pleadings to determine whether trial is in fact necessary to resolve their
dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "If summary
judgment was properly granted on any ground, we must affirm regardless of whether the
court's reasoning was correct." (Jackson v. Ryder Truck Rental, Inc. (1993) 16
Cal.App.4th 1830, 1836.)
III. Marketable Record Title
A. The Act
In 1982, the Legislature passed the Act, which was a comprehensive statutory
scheme "to simplify and facilitate real property title transactions in furtherance of public
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policy by enabling persons to rely on record title." (Civ. Code, § 880.020, subd. (b).)
The Legislature declared that "real property is a basic resource of the people of the state
and should be made freely alienable and marketable." (§ 880.020, subd. (a)(1).)
"Interests in real property and defects in title created at remote times, whether or not of
record, often constitute unreasonable restraints on alienation and marketability of real
property because the interests are no longer valid or have been abandoned or otherwise
become obsolete." (§ 880.020, subd. (a)(2).)
As part of the statutory scheme, the Legislature abolished fees simple
determinable and possibilities of reverter. (§ 885.020.) "Every estate that would be at
common law a fee simple determinable is deemed to be a fee simple subject to a
restriction in the form of a condition subsequent. Every interest that would be at common
law a possibility of reverter is deemed to be and is enforceable as a power of
termination." (Ibid.) As a result, a person entitled to take advantage of a breach of
condition does not have an immediate right to the property; instead, "the grantee's estate
does not terminate unless the power [of termination] is exercised in a timely manner by
the person holding the power." (3 Miller & Starr, Cal. Real Estate (3d ed. 2011) Estates;
Restraints; Perpetuities, § 9:5, pp. 9-12; see also § 885.010 [defining "power of
termination"].)
"To achieve [the public policy] goals, the Legislature adopted a recordation
requirement for certain types of interests, including powers of termination. (§ 885.010 et
seq.) Failure to record interests within a given period of time results in expiration of the
interest. These times for expiration 'are absolute and apply notwithstanding any disability
or lack of knowledge of any person. . . .' (§ 880.250, subd. (a).)" (Walton v. City of Red
9
Bluff (1991) 2 Cal.App.4th 117, 128 (Walton).) " 'The recordation provisions of the [A]ct
provide for a simple and easy method by which the owner of an existing old interest may
preserve it. If he fails to take the step of filing the notice as provided, he has only himself
to blame if his interest is extinguished.' " (Severns v. Union Pacific Railroad Co. (2002)
101 Cal.App.4th 1209, 1227 (Severns).)
"An interest may be preserved by the timely recordation of a notice of intent to
preserve the interest and these notices may be given consecutively: Perpetuity of interest
is not prohibited. [Citation.] Any person who claims an interest may record the notice, a
form of which is provided in the statute. (§§ 880.320, 880.340.) [¶] . . . A power of
termination expires at the later of: (1) 30 years after recordation of the instrument
evidencing the power, (2) 30 years after recordation of the last notice of intent to preserve
the power. (§ 885.030.)" (Walton, supra, 2 Cal.App.4th at p. 128, fn. omitted.) If the
period to record the notice expires before, on, or within five years after the operative date
of the statute, the period is extended until five years after the operative date. (§ 880.370.)
"When a future estate in real property is subject to a power of termination, the
power becomes unenforceable when it expires." (3 Miller & Starr, supra, § 9:8, p. 9-23.)
In that regard, section 885.060 provides:
"(a) Expiration of a power of termination pursuant to this chapter
makes the power unenforceable and is equivalent for all purposes to
a termination of the power of record and a quitclaim of the power to
the owner of the fee simple estate, and execution and recording of a
termination and quitclaim is not necessary to terminate or evidence
the termination of the power.
"(b) Expiration of a power of termination pursuant to this chapter
terminates the restriction to which the fee simple estate is subject
and makes the restriction unenforceable by any other means,
including, but not limited to, injunction and damages.
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"(c) However, subdivision (b) does not apply to a restriction for
which a power of termination has expired under this chapter if the
restriction is also an equitable servitude alternatively enforceable by
injunction. Such an equitable servitude shall remain enforceable by
injunction and any other available remedies, but shall not be
enforceable by a power of termination." (Italics added.)
B. Analysis
The Use Restrictions in this case were drafted in the form of conditions
subsequent with right of re-entry. Under the Act, the right of re-entry was transformed
into a power of termination. (§ 885.020.) In order to preserve the power of termination,
Appellants were required to record a notice of intent to preserve their interest.
(§ 880.350.) Generally, a notice of intent must be recorded within 30 years of the date
the instrument evidencing the power of termination was recorded or after the date a
notice of intent was recorded. (§§ 880.030, 885.030.) However, for interests that had
already expired or would expire within five years of the Act's effective date, January 1,
1983, the Act provides a five-year grace period. (§ 880.370; Cal. Const., art. IV, § 8,
subd. (c)(1); Severns, supra, 101 Cal.App.4th at p. 1220.)
The Union/Wurzell Restrictions are set forth in deeds recorded in 1949. The
Rotner Restrictions are set forth in a deed recorded in 1955. Thus, the 30-year recording
period expired in 1979 for the Union/Wurzell Restrictions and 1985 for the Rotner
Restrictions. Allowing for the Act's five-year grace period, Appellants were required to
record their notice of intent to preserve their interest in the Use Restrictions by 1988.
Appellants did not dispute that they failed to record a notice of intent under the Act to
preserve their interest in the Use Restrictions. They assert, however, that they were not
required to record a notice of intent to preserve their property interest because the Use
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Restrictions were alternatively enforceable as an equitable servitude and thus fall within
the exception set forth in section 885.060, subdivision (c). Accordingly, we consider
whether the Use Restrictions were alternatively enforceable as an equitable servitude.
IV. Equitable Servitudes
A. General Principles of Equitable Servitudes
"Under the law of equitable servitudes, courts may enforce a promise about the use
of land even though the person who made the promise has transferred the land to another.
[Citation.] The underlying idea is that a landowner's promise to refrain from particular
conduct pertaining to land creates in the beneficiary of that promise 'an equitable interest
in the land of the promisor.' [Citations.] The doctrine is useful chiefly to enforce
uniform building restrictions under a general plan for an entire tract of land or for a
subdivision." (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361,
379 (Nahrstedt).) Although the doctrine of equitable servitudes is often invoked in cases
involving restrictions imposed pursuant to a general plan for improving an entire tract or
real estate subdivision, it is not limited to restrictions imposed in common interest
developments. (Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 378 (Marra).)
There are several requirements that must be met before a covenant will be
enforced as an equitable servitude. First, the covenant must be stated in a written
agreement. (Code Civ. Proc., § 1971; § 1624, subd. (a)(3); Citizens for Covenant
Compliance v. Anderson (1995) 12 Cal.4th 345, 358 (Citizens).) Second, the contracting
parties must have expressed their intent to bind their successors. (Citizens, at pp. 357-
358.) Third, the agreement must describe the property to be affected thereby. (Wing v.
Forest Lawn Cemetery Ass'n (1940) 15 Cal.2d 472, 483; Martin v. Ray (1946) 76
12
Cal.App.2d 471, 479.) Fourth, the covenantor's successor must have had actual or
constructive notice of the covenant at the time it acquired the covenantor's property.
(Citizens, at p. 363.) Finally, the equities must support the issuance of relief. (Marra,
supra, 15 Cal.2d at p. 378.)
B. Analysis
To support their equitable servitude argument, Appellants primarily rely on
MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693(MacDonald). In that case, a prior owner of a golf course conveyed a strip of land along
its sixth fairway to the predecessor of an adjacent land owner. (Id. at p. 696.) The
property served as a rough for the sixth fairway and golf balls fell on it every day. (Ibid.)
Thus, to prevent interference with the property's use for golfing purposes, the deed of
conveyance contained building restrictions. (Id. at p. 696.) The plaintiffs argued the
deed restrictions were not enforceable against subsequent purchasers because the original
deed did not describe the benefited property. (Id. at p. 699.) Recognizing the argument
was technically correct, the court nevertheless held that deed restrictions drafted as
conditions subsequent with right of reentry "may be enforced . . . as equitable servitudes
against transferees acquiring the property with actual or constructive notice of the
restrictions, when failure to enforce the restrictions would produce an inequitable result."
(Id. at pp. 699-700.)
Notably, McDonald differs in a significant respect in that it did not involve a
power of termination and the Act as the Act did not exist at the time the court decided the
case. Regardless, Appellants argue that based on MacDonald, the Use Restrictions were
enforceable as an equitable servitude so long as Syverson had actual or constructive
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notice of the restrictions, they were assigns of a grantor, and Syverson could not show
enforcement would produce an inequitable result.
Appellants are correct in that notice is an essential requirement for an equitable
servitude. (Citizens, supra, 12 Cal.4th at p. 365-366; McDonald, supra, 72 Cal.App.3d
at p. 699-700.) They claim Syverson had constructive notice based on the recorded deed
restrictions and a triable issue of fact existed as to actual notice because Syverson stated
in his original complaint that he learned of the grant deed containing the Use Restrictions
during the course of the purchase of his property.
Appellants' argument that Syverson had notice of the Use Restrictions, which is
based solely on the deeds containing the restrictions, is flawed because the Use
Restrictions expired in 1988. In general, "[a] 'duly recorded' document gives constructive
notice unless the interests described in the recorded document are released, discharged, or
conveyed to the property owner by another recorded document. It remains in the public
records, and imparts constructive notice, even though it may be unenforceable." (5
Miller & Starr, Cal. Real Estate (3d ed. 2011) Recording and Priorities, § 11:67, p. 11-
121.) However, an exception exists where the interest expired by statute. (Id. at § 11:67,
pp. 11-121 to 11-122.) Under the Act, "certain interests reflected by a recorded
document become unenforceable and no longer impart constructive notice after the
passage of certain prescribed periods of time." (Id. at § 11:68, p. 11-213.)
As relevant here, the Act provides that the "[e]xpiration of a power of
termination . . . makes the power unenforceable and is equivalent for all purposes to a
termination of the power of record and a quitclaim of the power to the owner of the fee
simple estate, and execution and recording of a termination and quitclaim is not
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necessary to terminate or evidence the termination of the power." (§ 885.060, subd. (a),
italics added.) Thus, once Appellants' power of termination expired in 1988, it resulted in
a termination of the power of record and quitclaim of the interest to Syverson. As such,
recordation of the Use Restrictions no longer imparted constructive notice after
expiration of the power of termination as provided under the Act.
Similarly, even if Syverson had actual notice of the deeds containing the Use
Restrictions, he only had notice that his chain of title included expired Use Restrictions.
In the event that the deeds triggered a duty of inquiry to determine the validity of the
restrictions, such duty only extended to what he could have discovered based on a
reasonable investigation. (See Walgren v. Dolan (1990) 226 Cal.App.3d 572, 579;
American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1020.)
Assuming without deciding that a reasonable investigation included uncovering the Prior
Action, Syverson would have learned that the trial court had previously concluded the
Use Restrictions constituted conditions subsequent with a right of re-entry, which
subsequently became a power of termination under the Act and required recordation of a
notice to preserve the interest. Syverson would have further learned that Michael Emery,
the defendant in the Prior Action, expressly argued that the Use Restrictions were not
restrictive covenants or equitable servitudes. Indeed, Michael Emery had argued the
deeds could not "reasonably be construed as creating covenants or servitudes."
Accordingly, an investigation would have reinforced that the Use Restrictions constituted
a power of termination under the Act requiring a notice of intent to preserve the interest
and would not have put Syverson on notice of an interest based on an equitable servitude.
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The parties have not pointed to anything in the record of title, other than the deeds
containing the expired Use Restrictions, that would have put Syverson on constructive
notice of Appellants' claimed interest in Syverson's property. Likewise, Appellants have
not shown or argued that Syverson had actual notice prior to his purchase based on
anything other than the deeds containing the expired Use Restrictions.
We recognize that the notice requirement is somewhat circular in that the analysis
leads us back to the expiration of the Use Restrictions under the Act. We also
acknowledge that we should not construe a statute to render any provision therein useless.
(Williams v. Superior Court (1993) 5 Cal.4th 337, 354.) Thus, we must consider whether
our conclusion that Syverson's lack of notice despite the recorded deeds in his chain of
title was fatal to Appellants' claim of an equitable servitude renders subdivision (c) of
section 885.060 meaningless. Based on our review of the legislative history, we conclude
it does not.
The Legislature added subdivision (c) to section 885.060 in 1990. (Stats. 1990, c.
1114 (A.B. 3220), § 1.) The purpose of adding that subdivision was "to prevent [section
885.060] from being applied to nullify property restrictions in the covenants, conditions,
and restrictions (CCRs) of numerous homeowner associations." (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 3220 (1989-1990 Reg. Sess.) as amended May 15, 1990
(Judiciary Committee Report).) The Judiciary Committee Report explained that a
homeowners association sponsored the bill because hundreds of homeowners
associations had failed to record notices of intent to preserve their interests in their CCRs
and, as a result, lost their ability to enforce their CCRs. (Ibid.) Thus, proponents of the
bill sought to "reaffirm the right of homeowner associations to continue to enforce
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reasonable CCR restrictions by deeming the restrictions as equitable servitudes rather
than as a condition giving rise to a power of termination." (Ibid.)
In the case of homeowners associations, the Legislature chose equitable servitude
law as the standard for enforcing CCRs. (Nahrstedt, supra, 8 Cal.4th at p. 380.) Section
885.060, as originally enacted, "removed the ability of homeowners associations to
enforce longstanding . . . [CCRs] unless the association affirmatively preserved its
interest." (Judiciary Committee Report, supra.) By adding subdivision (c) to section
885.060, the Legislature rectified the problem and reinforced the ability of homeowners
associations to enforce their CCRs without a notice of intent to preserve their interest
therein. Nothing in our analysis of this case changes that solution or result. Although
not necessarily limited to the context of homeowners associations' CCRs, we see nothing
in the legislative history suggesting that subdivision (c) applies to situations as in this
case where landowners are attempting to escape the requirements of the Act by seeking to
alternatively enforce deed restrictions as equitable servitudes.
In any event, even if the notice requirement was not fatal to Appellants' claim of
an equitable servitude, the Use Restrictions do not meet other requirements of equitable
servitudes.
In order to establish an equitable servitude, the deed containing the restrictions
must contain "a proper expression of intent to create an equitable [servitude]; that is,
reference to a common plan of restriction or indication of an agreement between the
grantor and grantee that the conveyed lot to be taken subject to some such plan, but
also . . . 'some designation or description of what is an essential factor, namely, the
dominant tenement.' " (Wing v. Forest Lawn Cemetery Ass'n, supra, 15 Cal.2d at p. 480.)
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" 'There should be some written evidence, either in the form of a plat [or] otherwise,
delineating or pointing out the extent of the property affected by the restrictions.' " (Ibid.)
" '[P]rovisions of an instrument creating or claimed to create such a servitude will be
strictly construed, any doubt being resolved in favor of free use of the land.' " (Friesen v.
City of Glendale (1930) 209 Cal. 524, 529.)
In this case, the Union/Wurzell Restrictions neither described the dominant
tenement nor stated that the restrictions were for the benefit of other parcels pursuant to a
common plan. To the contrary, the Union/Wurzell Restrictions stated they were
"operative as covenants running only with the land covered by each separate and
particular lot of parcel hereby demised, but shall not inure to the benefit or detriment of
any owner or owners of adjoining or adjacent lots, lands, or parcels in anywise or
manner whatsoever." (Italics added.) Similarly, the Rotner Restrictions did not identify
a dominant tenement and common plan.
If we were to accept Appellants' argument that the Use Restrictions are
alternatively enforceable as equitable servitudes, we would run afoul of the purpose of
the Act. The Legislature enacted the Act to clear "interests in property and defects in
titles created at remote times, whether or not of record" because such interests and defects
"constitute unreasonable restraints on alienation and marketability of real property," often
resulting in delays and litigation to clear titles. (§ 880.020, subd. (a)(2)-(3).) The
Legislature declared that "titles should be determinable to the extent practicable from an
examination of recent records only." (§ 880.020, subd. (a)(4).) "The burden on holders
of old interests of recording a notice of intent to preserve or an extension of time is
outweighed by the public good of more secure land transactions." (Cal. Law Revision
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Com. com., 7 West's Ann. Civ. Code (2007 ed.) foll. § 880.020, p. 422.) If landowners
who allowed their interest to lapse, such as Appellants in this case, could run to court to
seek an injunction to alternatively enforce the interest as an equitable servitude, it would
render the Act's purpose nugatory. Instead, we conclude the exception set forth in
subdivision (c) of section 885.060 only applies to restrictions which comply with the
requirements of equitable servitudes and is not a savings clause for landowners who
through inadvertence, neglect, or otherwise allowed their power to termination to expire.
Because the Use Restrictions expired based on Appellants' failure to record a
notice of intent to preserve their interest and Appellants failed to show a triable issue of
fact exists as to whether the Use Restrictions are equitable servitudes, the trial court
properly granted summary adjudication in Syverson's favor.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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