Commercial Real Estate Blog by Madison

Title Guys in Cars talking Hockey… and Prescriptive Easements

As a young boy, there were three things I enjoyed most… hockey, cars and title insurance. Even to this day, I keep myself busy with these same interests. In the spirit of Jerry Seinfeld’s melding his interests into a web-only show, “Comedians in Cars Getting Coffee”, I thought I would take a shot at blogging about these three loves of mine.

I was about eight years old when hockey became my passion. It started with collecting hockey cards, playing road hockey and becoming a fan of the three-time Avco Cup champion Winnipeg Jets. (That’s right. Google it!) All the while, I was studying the intricacies of title insurance while obsessing over my very first love, the automobile.

One day in the fall of 1977, my buddies and I were playing a game of street hockey in a nearby public park we frequented quite often. As was the norm, an angry neighbor came to protest for the umpteenth time that our puck (read tennis ball) landed on his property. Needless to say, I could think of only one thing: the recent decision in the matter of MacDonald Properties, Inc. v. Bel-Air Country Club , 72 Cal.App.3d 693 [Civ. No. 49715. Court of Appeals of California, Second Appellate District, Division Two. August 15, 1977.]

But let’s digress for a moment to make this entry come full circle. As I’m sure the reader observed, the name of the Defendant in this case was the Bel-Air Country Club. Bel Air was also the name of a full-sized automobile built by the Chevrolet division of General Motors from 1950–1975. From 1950 to 1952, only the two-door hardtops in the Chevrolet model range were designated with the Bel Air badge. In 1953, the Bel Air name was changed from a designation for a unique body shape to a premium level of trim applied across a number of body styles. Bel Air continued with various other trim level designations until U.S. production ceased in 1975. Incidentally, production continued in Canada for its market through 1981. No doubt the demise of the Chevrolet Bel Air was also on my mind on that day in 1977.

MacDonald Properties v. Bel-Air Country Club

Now back to MacDonald Properties v. Bel-Air Country Club. In MacDonald, the Plaintiffs property was immediately adjacent to a fairway of the neighboring golf course. This area was one where golf balls were frequently driven and subsequently retrieved by the Defendant and its members. Golf balls landed on the servient property each day for more than five years. The question before the Court was whether this would be ruled a prescriptive easement.

There are 4 rules in establishing a prescriptive easement:

1. Use that is actual and open
2. Use that is adverse to the owner (without permission)
3. Five years of continuous use
4. Must not exclude use by the owner

The affidavits of both parties established without contradiction that Bel-Air’s use of the area as ‘rough’ for its sixth hole continued for over forty years — from sometime prior to 1936 to the filing of suit in 1974. Bel-Air’s use was adverse, under claim of right, and accepted as such by the owner of the subject property. The evidence established that plaintiffs knew of the fall of golf balls on the subject property and their retrieval by defendant’s players and agents (knowledge which plaintiffs conceded) and failed to protest Bel-Air’s continuous use of the subject property as rough. The plaintiffs also failed to post permissive use signs or take other steps to preserve their rights.

Court Ruling in favor of Prescriptive Easements

The Court ruled in favor of the Country Club ruling that continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence. Concluding, “the said easement and servitude is forever quieted against any and all claims of Plaintiffs, or either of them, or any person claiming through or under them, or either of them; and each of Plaintiffs and all such persons are enjoined from asserting any claim whatsoever adverse to Defendant in or to said easement and servitude or inconsistent therewith; and each of Plaintiffs and each of said persons is further enjoined from obstructing, impeding or interfering with Defendant’s use and enjoyment of said easement and servitude.”

Going back to my hockey game. Could continuity of usage earn us hockey players an easement? In the end, I didn’t pursue the matter for the following reason. In MacDonald, the court rejected the plaintiffs argument that if Bel-Air prevails on the easement issue, all homeowners living near golf courses on whose property golf balls sometimes fall will find themselves subject to easements in favor of the golf course property, if they permit players to retrieve golf balls. Said the court, “it is unlikely that many homes are so situated as to show the continuous usage without protest that occurred here (a minimum of “several balls per day frequently and regularly” driven onto the property and retrieved there from, amounting to “between three and five percent of the balls teed off from a given location”). In the context of this decision, the frequency in which our puck crossed into the neighbor’s lot was not likely to meet any standard of continuous use. After all, we were not full time hockey players and, thankfully, our shooting was evidently better than the golfers’ putting.

Rather impressive reasoning for a nine-year old.

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