Irrevocable Parol License: Court Grants Rare Right to Use Neighbor’s Property

Boundary, Fence, & Tree Disputes by Peter N. Brewer, Esq.

Usually when we write about neighbor disputes, we discuss boundary disputes, a misplaced fence, or property rights gained or lost through adverse possession or easements.  In our previous article, we discussed Adverse Possession, Prescriptive Easements and Equitable Easements, with a brief description of the elements required to establish those claims. A review of those types of claims reveals they are heavily fact-based and can be difficult for the claimant to prevail.

However in a rare case this year, California courts gave a neighbor an “irrevocable parol license” over someone else’s property, a type of grant that we have never seen before.

In Marin County, two neighbors got into a dispute over a 30 foot wide easement down a 150 foot long road.  With property values being what they are in Northern California, this was a pretty costly strip of property.

The Poksays built their house in Novato in 1989.  Their driveway was constructed pursuant to an easement over 2515 Laguna Vista Drive, which was owned by the Schaefers.  The Schaefers had granted the Poksays an easement for access and utility purposes only.  Typically, that means ingress, egress, power lines and water.  However, the Poksays ended up improving this large easement with significant plantings, irrigation and electrical lighting.  Over a decade later, the Poksays sold the Property to the Donettis who then added further vegetation.  In 2004, the Francs purchased the Schaefer’s property which was subject to this easement in favor of the Donettis.  After 6 years of apparent neighborly tranquility, the Francs cut the power and irrigation lines, dismantled the water pumps, and sent a demand letter for the Donettis to remove all the landscaping.

In response, the Donettis sought an injunction, which was granted, to restore the irrigation system.  Further the Donettis sought the ultimate relief of an irrevocable parol license not only for themselves, but also for their successors in interest to maintain and improve the landscaping, irrigation and lighting within the easement.

The Donettis won and the Francs appealed.

On appeal, the Appellate court affirmed the lower court’s decision and gave its rationale, finding that it would be inequitable to terminate the permissive use that the Donettis had enjoyed and concluding the Donettis had an “irrevocable parol license” to maintain and improve the landscaping.

[Richardson v. Franc, 233 Cal. App. 4th 744 (2015)]

HERE’S WHY THIS CASE IS IMPORTANT: Licenses are usually revocable, so they have some duration at which they will end.  This license was irrevocable and was granted not only to the present owners, but also to their successor-in-interest.  That means that when the Donettis sell or transfer their property, the license is also tranferable to the new owner.  This is akin to a permanent right that runs with the land, the way an easement does.

This case only further muddies the waters and makes evaluation of each respective neighbor’s rights difficult.  The law was already scattered on boundary disputes, with findings swinging in either direction depending on the sympathies to the parties.  Hopefully, the Supreme Court will take a look at this issue and provide definitive clarity, especially with regard to rights that seem so permanent in nature, contrary to what a “license” is intended.

COMMENT: Why were the Donettis entitled to such a big win?  Neighbor disputes fundamentally come down to fairness and balancing the equities.  Here, the courts concluded that the fee simple owner of the land (the “servient tenement”) was benefitting from letting the easement holder (the “dominant tenement”) do all the work and pay for all the decades of landscaping and water bills.  The opinion had a pretty lengthy description of the many different varieties of plantings and the way the mature landscaping enhanced the visual appeal (and hence property value) of the property.  The license is for landscaping which now begs the question, what if the Donettis or the successors one day stop paying the water bill, the gardeners and let it all go to seed?  Could the Francs compel the Donettis to maintain the property? Could the Francs seek a termination of the license at that juncture?

If you need legal help with regards to neighbor disputes, boundary disputes, or easements, you can contact our firm here.

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