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*220.0162"
December 6, 1985
Reassessment of Real Property
After Granting of Easement
Dear Mr.
In your letter to ot October 28,
you request our opinion of whether a change in ownership
would occur ~s a result of granting an easement under
the following·facts described in yo~r letter:
•parcel 1 fronts on a public road.
Parcel 2 is landlocked. The owner
of Parcel 1 grants to the owner of
Parcel 2 a non-exclusive, twenty
foot right of way for -ingress and
egress onto Parcel 2.• ·
Neither the Revenue and Taxation Code nor the Property
Tax r~les.promulgated by the Board deal specifically with
the question of whether a.grant of an easement is a change
in ownership for proeprty tax purposes.
Revenue and Taxation Code* Section 60 does, however,
define change in ownership to mean •a transfer of a_present
interest .in real property, including the beneficial use thereof,
tjle value of which is substantially equal to the value of
the fee interest.•
. Although an easement is not an estate in real property
because it is nonposs·essory, it !a an interest J.n real property.
·:t~ 11:. Ldne ·stcll:!~'.'!lndusf!riea,. nc. :{1_,1g,k J4.:..Cal..App .. 3d 895 .• )
Under the facts escr e above, t also appears to be a
preaent interest. Further, it is clear that the owner of.
the easement will have the beneficial use of the descr.ibed
real property· for. right-of-way purposes.
- Statutory references are to the Revenue and Taxation Code
· unless otherwise indicated.
-2- December 6, 1985
Assuming the easement to be granted in this case
is perpetual, the only question here is whether the value
of the ease~ent is-substantially equal to the value of the
fee interest (in the identically described land) considering
the fact that the easement here is nonexclusive •. When an
easement is nonexclusive, the servient owner. may use the
easement as long as his use does not interfere with or impede
the right of use of the easement owner. (Atchison, Topeka
& Santa Pe Railroad Company v. Abar (1969) 275-Cal.App.2d
456.) since the servlent owner"auae can't interfere with
the easement owner'·s use aa a right-of-way, the easement
owner's use of the easement for right-of-way purposes is
substantially equivalent to the use he could make of the
twenty foot strip if he owned an exclusive easement or if
he owned the twenty foot strip in fee simple. It could,
therefore, be argued that the value of the nonexclusive easement
in this case is substantially equal to the value of the fee.
interest. We have taken the opposite position, however, ·
with respect to nonexclusive easements for ingress and eqress
as indicated by the enclosed copy ·of a memo of· -J-~,
formerly of our legal staff,. dated November. 24, 1981.
Accordingly, it is our opinion that the grant of
the nonexclusive easement described above would not constitute
a change in ownership as defined by Section 60.
The views expressed in this
~
letter are, of course,
only advisory in nature. They are not binding upon the assessor
of any county. You may wish to consult the appropriate assessor(s)
in•order to confirm that the described property will be assessed
in a manner consist~nt with the conclusions stated above.
Very truly yours,
Eric P. Biaenlauer
Tax counsel
EFE:fr
Enclosure
Mr. Glenn L. Rigby Dec.^ 10,^1980
Hargaret.S. Shedd
Easements
This is in response to your recent request .that I reaearch tho nature of the interest created by an easement in order to determine whether the transfer of an easeccnt constitutes a change in ownership for property tax_ purposes. As you ar~ aware, a change in ownership is generally defined in Section 60 of the Revenue and Taxation Code as •a transfer of a present
interest in real property, incluaing the beneficial use
thereof, the value of which is substantially equal to the value of the fee intereat.q Section 6l(a) of the Code specifically includes certain typea of casements, i.e., mineral rights, as being substantially equal to tbe value of a fee interest. This section provides:
- Except as otherwioe provided in Section 62, change in ownership, as defined in Section 60, includes,·but is not limited to:
(a) The creation, renewal, sublease, assignment, or other transfer of the · right to produce or extract-oil, gas, or other minerals for.so long as they can be produced or extracted in paying ··quantities. The balance of the prop-
erty, other than mineral r~ghts, shall
not be reappraised pursuant to this section. ·
The issue has been raised of wh~ther an addi-
tional section or sections are needed to clarify that
other types of easements should be specifically addressed or whether the existing test provided in Section 60 is sufficient.
Hr. Glenn L. Rigby -2-^ Dec. 1 O, 1980
I. Ease~ents Defined....
· Anl'easement,:1s:ran'"Tfinterest~-1n. the ... land. of)
anotherr ~wlfifh t'entitlils·),the ,,;owner ,,of .•. the··:e·asi!ment'' to."a-,
limited :use :.of ;·enjoyment"':of ~the '^1 othe·r• s · 1ana: ·· (Restate ment :of Property;·Sec~·':·450~·,Eaotman v: Piper', (192•l) 68 Cal. App. 554, 560: Zlozower v. Lindenb~, (1929) 100 Cal. App •. 766, 770.)
E3se~ents may be created by express wo~ds, by grant or reservation, usually by deed, by implication (Civ. Cocle, Sec. 1104) (usually involving division of land): by necessity; and by proscription '(open and notorious use, continuo11s, hostile to owner, excluaivi?. and under claim of rights). Cushman v. Davis, (1978) 80 Cal. App. 3d 731, 735. --- ---
Easements'^ are.divided into.two categories, easements .appui:tenant-,and .easements in· gross. An ease- ment ,is appurtenant when it is attached to thn land of the easement owner, which is th-e dominant tenement, and burdens the land ot. another, the servient tenement. ( Witkin, SUD!mary of Cal. Law, Real Propert~', Sec. 3-41.) An·easement .in gross'.,·is"i'.a.right:;in·another's land not· created ::·for •.the ..-,benefit of .any· 1and owned by the ease- ment ,hoiderFiiftis not attached to tho land but is a persoilai·:·rigtii attached 'to t.he · person of the easement bolder. •.: It it1r. however, · as much ·c:u\ lnt-erest in·. · another's land, i.e., the servi~nt tenement, as an easement appurtenant. ·-rbe important difference between an easement appurtenant and an easement in grosg is that an easement appurtenant is attachP.d to a dominant tene- ment and passes with its transfer, even though not spec ~f ically ment~~n~d ~· .,.,,,,~~'}!e_.ent ·;:inYgtostf?J:"'On.":':.th~ 9.ther:!band ~:·.Which (exists:;,~1~hout a ;aominant ·tener.lent ~}t!Ab.of:p~§;}~(~.ar(':'iRPllrte'i1arice~!ft~·;~an~ ::~e:.
·? ·'and must .:}{lf ~xpressly ,·tranztfei:_~ed...• ( Bowman, Ogden's Revised Cal. R~al :property" Law, V•. 1, Ssc. 13. 7)
Section 801 of the Civil Code lists (^) the following lS easements^ ao^ easements^ appurtenant:.
- The right of pe.sture
- 'l.'he right^ of^ fishing, 3. The right of t.a.."t ing game:
4 .. The r ight-o·f-wny J
Mr. Glenn L. Rigby -4-^ Dec.^1 O,^1980
3. The right^ of burial;
- The right of taking rents and tolli-:
- The right^ of^ way:
- The right of taking water, wood minerala, or othe~ things.
It has been held that these listings in th~ Civil Coda a~e not exclusive, and that the Code does not purport to state all the possible easamants. (Je!:£!:[ !~--~~ v. ~tlanta Real!X_~o..!., (1!112) 164 Cal. 412.) It should also be noted that in 1979, th~ Legislature adc1ed· a new Chapter to the Civil Code, co::imencing with Section 815 for conservation easem~nts conveyed to qualified nonRrofit organizations.
II.
A. E5tates
Although an easement ia an interest in· land whlch rnay baa perpetual right in fee, or one of lesser
duration (3 Witkin, Su~mary of Cal. Law, Real Property,
Sec. 340), it is not logally 3n estate in real property
and, as such, may not act as the servient tenement for
another ea!lement (!'!ilYWard v. Mohr, (1958) 160 Cal. App. 2d 427).
The terl.t\ estate is confingd to thos'l interest& in land which are or may become possessory. The
California Civil Code, Section 761, for example, lists
four types of estates in roal property, all of them
possessory interestsr 1. Estate of inheritance or
perpetual estates, 2. Estates for life: 3. Estates for years, or 4. Estates at will. ~"3easenient~~-is ;li .nC'nponsesnory ::.interest -".c in real-'-propert§1 \the.:; fact i that
it;,i.Jnv.~lves· u_se ,of_-another's>land_evidenc·esiits non~s-
se~sOry-; character.'/:..',As ·such/. it""'"cannot-be··an'~estate·--fn r~al property.-· Powell states the rule succinctly: •while an easement is clearly an •interest in land 1 ••• it is equally clearly never an •estate in land.'" ( Powell, Easements and Licenses, ch. 34, eec. 405) (See
generally, Da~r v. Lone Star Industries, Inc., (1979) 94
Cal. App. 3d1i95, 900~901.)
· It is possible, however, that an intereat
termed as an easement may, in fact, be an estate. In
Mr. Glenn L. Rigby -5-^ Oec. 10, 1980
this regard, the court in P.aab v. Casper, (1975) 51 Cal. App. 3d, 866, 876-877, stated:
"The former [exclusive easement] is a right to use pt'operty of another, every incident of ownership not inconsistent with enjoymant of the
. eascmept is reserved to the owner of the servient tenement; the latter [outright title) may make use of any of the property which c1oes not unduly interfere with the easam~nt.
[Citation.] An exclusive interest
labeled 1 easement• may be so compre-
hensive as to supply the equivalent
of an estate, i.e., o~net·ship. In dete.rmining whether a conveyance creates an easement or estate, it is important to observe th~ extent to which the conveyance lildts the uses available to the qrantor: an estate entitles an owner to the e~clusive occupation of a portion of the
earth's surface. [Citations.] "'"If
a.conveyance purported to transfer to A an unlimited use or enjoyment
of Blackacre, itwould be in effect
a conveyance of ownership to.A, not of an easem~nt.• 1 ~ (Citations.]
e. Leaseholds (Estates for Years)
A leasehold
vests ex.clusivta possession of the property to the lessee, even against the owner of the fee (Von Goerlitz·v. Turner, (1944) 65 Cal. App. 2d 425,
- aml is based on a privity of estate between lessor and lessee.· (Sec Elli,r1.~on v. Walsh, O'Connor & Barneson, (1940) 15°" Ca_ • -;ra- 673.).. .., By contrast, an: easement doeis ~not. ·-clivest..,th~
. owner of -it~ possession ~in :-the "property;·1;rThe.-owner' of) an easement: (e.g.-, a tight-of-way· for-ingress -and egress
ove~ lend) has_~nly .:_the ~ontrol nec:essary to enable .him ··
to ,,_use -the···easement, and ordinarily· he :·cannot exclude-··. others from making __any use of. the· land **;_that** ,.~oes ::not· interfere ·with hie enjoyment of the easement. (Pasadena
v: Cal_ifornia-Micbigan Land & tlater Co~, (1941) i7 Cal ..
2d 576.)
Mr. Glenn L. Rigby -7- Dec.^ 10,^1980
(Dicrssen v. McCormack, (1938) 28 Cal. App. 2d 164, 170) Accordingly, the easeraent holc1er must ex~rcise his right so as not to i~pose any unnecessary b•Jrden on the serv i- ent tenement, and the owner of the servient tenement may make any use of th'9 property which <lees not unduly interfere with tho easement. (Baker v. Pierce, (1950) 100 Cal .. App. 2d 224, 226) Moreover,-,the fee owner may·: transfer: to another the· right·· to any use that be has -
retained. and could exercise himself. (Guerra v.
P&:_~kard, (1965) 236 Cal.·App. 2d 272)
Following arc exampl~s of rights the courts have found to be held by the servient owner which did not obstruct or interfere with the normal use of the easement granted~ ·
(l)•The servient owner may use the land
beneath a power lina. (Lozano v. PG&E, (1945) 70 Cal.
·App. 2d 415)' In Los l.ngeiesv. Howard, (1966) 244 Cal.
App. 2d 538, plaintiff city-granteclreal property ret-ervirig a 150 foot wide easement for operating and repairing power lines. The court held that defendant servient owners were entitled to use part of the surface area for a parking lot for their restaurant.
(2) Servient owner may maintain a fence across a clriainage canal "'hen no interference with the use of canal results. (Bolsa Land Co. v. Burdick,· (1976) 151 Ce:l. 254) ---.
(3) Having granted an easement for a roadway across his land, the servient owner may use the road
hi~self or grant the right of uaa to others if the ea~e-
ment owner's use is not int~rfe~ed with. (§!lletl~ v. Bockius, (1905) l Cal. App. 724)
- ·. ( 4) s~~vlent ''.owner )aay grant a pipeline _ease~-'.~.
ment---over::land~1:overed ',:bf'ii-previous grant of _a. similar ..
esement\tc(:'ariothei: :,Until ·a -point of .•irre·coricilable · conflict~:-f12:t:'.re·ached, a concurrent use. ·of the strip·· is -. permitt~d_.~--i.:-(Pasaden_! v~ -California.:.Michigan· Land & ,., water-;:co;·1 (1941) Ii Cal. 2c.! 576)
(5) Servient owner ~rrants e~ser.1ent to con- struct and maintain a ditch, reserving the right to take water on designated d~ys for the irrigation of their lands. Servient owners were entitled to permit another person to take water on those days. (Dierssen v. McCormack, (1938) 28 Cal. App. 2<l 164, 170)--
Mr. Glenn L. Rigby (^) -a- Dec. 1 O, 1980
IV. Con~l Ul! io_n
nased on the fore•;oing, and for the following reasonG, it is my opinion that ~my specific statute defining eaoeroants (other tban mineral rights) for pur- poses of aetermining whether a change in ownership has occurred would be extremely difficult to draft and would probably.be unworkablet
- Many of the easements listed in the Civil Code confer only nominal rights and are most likely not
currently assessed for prop~rty tax purposes.
2. easements appurtenant vass with the land
t.o·which they are attached and ~ny value of the easement
r.!ay be currently included when n change in own,a-rship of that propert;/\ occurG. Easements in groas, on the other hand, must be expressly tr~nsferred.
- Sinc::e ::easements ·are legally not estates in fee or leaseholds, ·a determination of whother the crea-· tion of an-easement has a valoe "which is substantially e·gual to the value of the fee interest" depends on· the
terms of the grant, the type and duration of the ease-
ment;· the degree of exclusive use conferred, and the
respective rights of the servient and dor.ainant owners
for each particular e~sement. This calls for a cnse-
by~~ase evaluation. · · ·
-,••,:;:.,.,:·_
MSS :fr.
cc; Mr. Lawrence A. Augusta Mr. Gordon P. Adelman .Mr • .Robert H. Gustafson
