Posted by: Patricia Salkin | September 20, 2007

California Appeals Court Reminds that Private Easements May Not Be Used to Circumvent Zoning

Although property owners may enter into private agreements regarding permission for certain uses of property through easements, these easements will not be upheld where they violate applicable zoning laws.  Such was the recent situation in Los Angeles where one property owner granted an adjoining property owner an equine easement allowing the dominant tenement to use about three-quarters of an acre on the servient tenement property for the keeping and enjoyment of horses including boarding, feeding, raising, training, riding, etc.   

The problem was that the City zoning ordinance specifically allows for the keeping of equines only in conjunction with the residential use of the lot, and while the owner of the dominant tenement had a residence on their lot, the servient tenement property had no residence and was undeveloped. The Court concluded that the owner of the servient tenement could not grant an easement for a use which is prohibited under the zoning code noting, “As is true with virtually all land use, whether the grantee could actually use the property for the purposes stated in the easement was subject to compliance with any applicable laws and ordinances, including zoning restrictions.” The court offered that the property owner could seek relief through a variance.     

Baccouchie v. Blankenship, 2007 WL 2600544 (Cal. App. 2 Dist. 9/11/07).


Responses

  1. And this case should be a good reminder to us that the law can be an ass. So if the ownerships had been the same — one owner for two separate adjacent lots — then the “dominant tenement” could still not use the second lot for pasturing its horse? Sounds like a very strained interpretation not comporting with my own sense of the purpose of zoning much less commonsense.


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