Gibbs v. Tiffin

Filed 11/22/06 Gibbs v. Tiffin CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this dispute between property owners in a wooded subdivision, the superior court granted summary judgment to the owners of three of the lots, finding no enforceable restriction on the growth of trees and shrubs. Plaintiffs Frederick and Gretchen Gibbs appeal, contending that the superior court should have recognized mutual equitable servitudes that protect the view from their home. We will affirm the judgment.

Background

The parties own neighboring lots in a subdivided tract known as Cathedral Park, originally owned by John Johanson. Parcel 12, owned by defendants Richard Tiffin and Patricia Pfremmer, is situated across Cathedral Park Drive from plaintiffs' lot (parcel 11). Johanson sold parcel 11 to predecessors of plaintiffs in 1962, and plaintiffs bought it in 1983. Parcels 12, 13, and 14 were sold to defendants' predecessors in 1958 (parcel 12) and 1964 (parcels 13 and 14). Defendants are all family members. Tiffin and Pfremmer bought parcel 12 in 1975, defendants Daniel and Deanna de Marigny bought parcel 13 in 1999, and defendants Norbert and Valari Desvaux de Marigny bought parcel 14 in 1999.

In June 2004 plaintiffs brought this action, seeking an injunction, declaratory relief, and damages for nuisance. They alleged that Johanson had sold each parcel subject to a "common plan, covenants and/or restrictions" running with the land. According to plaintiffs, defendants had violated those restrictions by allowing trees and shrubs on their property to grow high enough to obstruct plaintiffs' "general views" of the forests, canyons and Pacific Ocean.

The restriction at issue was the following provision contained in the deeds to defendants' predecessors: "Grantees will not allow shrubs or trees to grow sufficiently tall to impair the general view of adjoining property owners." Each deed except the first two contained this restriction. It was located after a list of provisions specifically identified as "not covenants, but conditions subsequent, running with the land." Those conditions covered storage and septic tanks, structure styles, and uses of the property. In addition, no trees six inches or more in diameter were permitted to be removed without the written consent of the grantor's agent. Thus, the "general view" restriction was outside the enumerated "conditions subsequent."

The first and second original deeds (parcel six, sold in 1956 and parcel three, sold in 1957) also contained a list of conditions subsequent, including the tree-cutting restriction. These first two deeds also stated that the specified "conditions subsequent" were "intended for the benefit of each and every lot owner" in the subdivision. They did not, however, include a clause pertaining to the views of adjoining property owners.

Defendants moved for summary judgment or, alternatively, summary adjudication, asserting that the deed restrictions were unenforceable as a matter of law. Addressing the language used by Johanson in the original deeds, defendants argued that if the disputed provision was a condition subsequent, it had expired under Civil Code section 885.030.[1] If considered to be a covenant running with the land, the provision was unenforceable under section 1468, because it did not state that it was "for the benefit of the covenantee, [or] binding on the assigns of the covenantor and it does not concern some act on the covenantor's property." Furthermore, the deed gave the grantor the right to re-enter the property to correct any conditions that were violated by the grantee, and it allowed the grantor's unspecified "Agent" to amend all listed restrictions (including the disputed tree/shrub provision). Finally, defendants argued that the deeds did not create any equitable servitude, as described in Werner v. Graham (1919) 181 Cal.174 (Werner). Specifically, the deed language did not express the grantor's intent to benefit other property, did not obligate successors to the grantee, did not state a common plan of restrictions, and did not designate the dominant tenement.

Plaintiffs maintained that the deeds were patently ambiguous, as they created an impossibly contradictory situation by providing for "conditions subsequent, running with the land." Plaintiffs suggested that the restrictions should be interpreted as either conditions subsequent or equitable servitudes. Defendants responded that an equitable servitude requires a common plan, which was missing from the subdivision map. They also pointed out that for an equitable servitude to exist, both grantor and grantee must express their intent to create the restriction.

The superior court agreed with plaintiffs that the disputed language was ambiguous by purporting to create conditions subsequent that ran with the land. The court also observed that the identification as "conditions subsequent" pertained to the "foregoing" restrictions, those that preceded the tree/shrub clause in the deeds. It concluded, therefore, that the tree/shrub restriction was not a condition subsequent subject to a power of termination and expiration, as urged by defendants.

The court then turned to the question of whether the restriction constituted an "equitable, enforceable servitude." Looking to Werner, supra, 181 Cal. 174 and Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345 (Citizens), the court reasoned that the original deeds to defendants' lots contained no express statement or other document expressing a common plan, no description of the dominant tenement, and no statement that the restriction was to "breed all future resources" [sic]. The court added that the provision was not a covenant running with the land but a personal covenant. Accordingly, the court granted the motion and entered judgment for defendants.

Discussion

At the summary judgment hearing, plaintiffs maintained that there were triable issues of fact precluding summary judgment. On appeal, however, they acknowledge that "most, if not all," of the issues are questions of law. The parties thus agree that this court's task is to determine whether defendants were entitled to judgment as a matter of law, in light of the undisputed facts submitted with the moving and opposing papers. (Code Civ. Proc., § 437c, subd. (c); see generally Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-855.) We therefore focus on the primary legal question before us, whether the tree/shrub restriction created an equitable servitude. We do not address the applicability of section 1468 (either in its current version or as it existed before its amendment in 1968 and 1969), as plaintiffs insist that this statute is not at issue.

"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. (See Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 378 . . . .)" (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 379.) As explained in the leading decision discussed by the parties and the superior court, "when the owner of a subdivided tract conveys the various parcels in the tract by deeds . . . imposing restrictions on each parcel as part of a general plan of restrictions common to all parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others." (Werner, supra, 181 Cal. at p. 183.) "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.]" (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 379.) The doctrine is useful chiefly to enforce uniform building restrictions under a general plan for an entire tract of land or for a subdivision, "but it is by no means true, as the respondents contend, that the doctrine is restricted to such cases." (Marra v. Aetna Construction Co., supra, 15 Cal.2d at p. 378.) On the other hand, while a covenant may be enforced in equity even if it benefits or restricts only a single parcel, it "must be appurtenant to other benefited property." (Ibid.)

"When landowners express the intention to limit land use, 'that intention should be carried out.' [Citations.]" (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 381.) In Werner, however, the Supreme Court emphasized that both grantor and grantee must agree to the restriction; the grantor's intent is not enough. (Werner, supra, 181 Cal. at pp. 184-185.) The covenant must also give notice to successors by a statement in a deed, a written agreement between landowners, or a prior recorded declaration containing a uniform plan of development. (See Citizens, supra, 12 Cal.4th at pp. 357-358.) If the deed or other instrument does not express the contracting parties' understanding, "the fact that it later appears that [the grantor] was pursuing a general plan common to all the lots in the tract cannot vary those rights." (Werner, supra, 181 Cal. at p. 185; accord, Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 506; Citizens, supra, 12 Cal.4th at p. 358.) The parties must have expressed the further intent to bind their successors. (Werner, supra, 181 Cal. at p. 181.) Finally, the deed or other instrument must particularly describe both the servient and the dominant tenements. (Martin v. Ray (1946) 76 Cal.App.2d 471, 479; Wing v. Forest Lawn Cemetery Ass'n (1940) 15 Cal.2d 472, 480, 483; see also Werner, supra, 181 Cal. at p. 182.) With regard to the description of the affected property, the Supreme Court has emphasized that " '[a]s a matter of policy, the understanding of the parties should be definite and clear, and should not be left to mere conjecture.' " (Wing v. Forest Lawn Cemetery Ass'n, supra, 15 Cal.2d at p. 480; accord, Riley, supra, 17 Cal.3d at p. 510; see also Citizens, supra, 12 Cal.4th at p. 358.)

We are not convinced by defendants' argument that there was no evidence of a common plan to impose restrictions for the benefit of adjoining property owners. Although the doctrine of equitable servitudes is often invoked when restrictions have been imposed pursuant to a general plan for improving an entire tract or real estate subdivision, as noted earlier, "it is by no means true . . . that the doctrine is restricted to such cases." (See Marra v. Aetna Construction Co., supra, 15 Cal.2d at p. 378; see also Greater Middleton Assn. v. Holmes Lumber Co. (1990) 222 Cal.App.3d 980, 992.) It may be applied to restrictions imposed on even a single lot. (Marra v. Aetna Construction Co., supra, 15 Cal.2d at p. 378.) Furthermore, the restrictions imposed on the burdened parcels need not be identical. (See, e.g., Greater Middleton Assn. v. Holmes Lumber Co., supra, 222 Cal.App.3d at p. 992.) We also believe that the deeds adequately conveyed the intent that the restriction was to benefit adjoining property owners. Plaintiffs have provided compelling authority on which to conclude that the street running between their lot and that of Tiffin and Pfremmer did not vitiate the nature of these parties' positions as adjoining property owners. (See Welch v. Kai (1970) 4 Cal.App.3d 374, 379-380 [lots separated by road were "adjoining" for easement purposes].) Plaintiffs do not, on the other hand, appear to be "adjoining property owners" with defendants de Marigny (parcel 13) or Desvaux de Marigny (parcel 14). If plaintiffs' argument is that they are adjoining landowners with the entire tract, then the dominant tenement has not been clearly defined after all.

In any event, we agree with the superior court that the provision at issue did not clearly and definitely express the mutual intent of the contracting parties that the benefit and burden of the tree/shrub restriction was to pass to succeeding owners. There was no language to that effect in the deeds from Johanson to the parties' predecessors. We must conclude, therefore, that a mutual equitable servitude was not created to ensure the continued preservation of the "general" views from Cathedral Park homes. Summary judgment was properly granted.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] All further statutory references are to the Civil Code unless otherwise indicated.