Roberts Cottage Assn. v. Chapin

Filed 3/20/06 Roberts Cottage Assn. v. Chapin CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Reversed.

The appellants challenge the granting of a "non-exclusive prescriptive easement" in garages to a homeowners association. We conclude the interest granted by the court was not an easement but a possessory interest, which required proof the homeowners association had paid the taxes on the garages during the preceding years, proof that was not made in this case. We reverse the judgment.

FACTS

In 1928, Roberts Cottages located in the City of Oceanside were built as beachfront cottages. In 1956, the property was subdivided, denominated a community apartment house project, and the original cottages were sold. The owners of the original cottages owned an exclusive interest in their individual cottages and the remaining property was owned in common. The cottage owners are members of Roberts Cottages Association (Association). The Association had a resident manager who, among other things, handled short-term rentals of the cottages, primarily to vacationers.

Roberts Cottages has 24 cottages. Twenty-three of the cottages are small, one-story buildings. Cottage No. 24 (Cottage 24) is a substantially larger two-story building. Originally, Cottage 24 had one residential unit, a workshop, and nine attached garage stalls. The first owners of Cottage 24 converted the workroom and upstairs area into residences. They also put a concrete floor and installed doors in the first garage stall next to Cottage 24 so they could garage their car. Later, two more garage stalls were enclosed and one was used as a linen room by the resident manager. Eventually, five of the garage stalls were demolished.

In 1960, Wilma Stakich and several other cottage owners purchased interests in Cottage 24 (hereafter referred to as the Owners). The current Owners of Cottage 24 are the appellants in this case.^[1] The Owners would occasionally meet to discuss maintenance and improvement of Cottage 24. Among other things, the Owners built cabinets in the linen storeroom, replaced drywall in a laundry room and remodeled the upstairs unit.

The Association rented the two-bedroom unit in Cottage 24 for its resident manager. There was never a written lease between the Association and the Owners; they operated under a verbal agreement.

For 29 years, until December 1997, Stakich was the resident manager for Roberts Cottages. She resided in the two-bedroom apartment in Cottage 24 with her sister. Stakich exercised control over the garages. Initially, she used one of the garages to park her car. She used another garage to store linens to be used in the cottages that were rented out. She allowed owners of the other cottages to use the garages on a first-come, first-served basis.

The Association discussed use and maintenance of the garages during some meetings, including use by its members on a first-come, first-served basis. The Association paid to demolish five of the original garages and to repaint the garages. In the late 1990's, the Association paid to re-roof the garages, with the Owners paying the portion of the roof that covered their residential space. The Association also converted a garage that had been used for linen storage into use as an office.

In 1998, following Stakich's death, her daughters inherited her interest in Cottage 24. In 2002, her daughters and the other Owners asserted the garages belonged to Cottage 24. They sought to charge rent for each garage beginning in February 2003. By this time, the resident manager no longer resided in Cottage 24, but in another cottage. Eventually, the Association hired a management company and the manager no longer lived in one of the cottages.

In April 2004, the Association filed suit to quiet title, for declaratory relief and for a prescriptive easement against the Owners. The trial court found the garages were owned by the Owners, not the Association, since the plat map and deed showed the garages on the property of Cottage 24 and the Owners had paid the taxes on the garage property. The trial court, however, also found the Association had used the garages continuously in an open, notorious and nonpermissive manner for more than five years and rejected the argument Stakich had given the Association members "permission to use the garages, [as] converted or otherwise." The trial court found Stakich exercised control over the garages in her "capacity as the manager of the facility, not as an owner." The trial court granted the Association "title to a non-exclusive prescriptive easement . . . for garage and storage space uses" but did not grant the Association the right to use a converted garage as office space because "[t]he office usage . . . has not been for the prescriptive period."

DISCUSSION

The Owners contend the court erred in ruling the Association had a prescriptive easement to the garages because it deprived them of essentially all rights to use the garages.^[2] The Association does not dispute that the Owners of Cottage 24 own the garages but argues the trial court properly granted an easement in its favor.

"To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right." (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.)

"Unlike adverse possession, a prescriptive easement does not require the payment of taxes." (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1186.) "To escape the tax requirement for adverse possession, some claimants who have exercised what amounts to possessory rights over parts of neighboring parcels, have claimed a prescriptive easement. Courts uniformly have rejected the claim." (Id. at p. 1187.) Thus, it is improper to grant an individual a prescriptive easement if it results in the exclusive use of the property. (See id. at p. 1182 [prescriptive easement improper for enclosed and possessed land]; Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1094 [prescriptive easement properly refused for landscaping and a woodshed on the land of another]; Mehdizadeh v. Mincer, supra, 46 Cal.App.4th 1296, 1305-1306 [prescriptive easement improper for landscaping and recreation purpose on land of another]; Silacci v. Abrahamson, supra, 45 Cal.App.4th 558, 564 [prescriptive easement improperly granted in land of another to an enclosed yard]; Raab v. Casper (1975) 51 Cal.App.3d 866 [prescriptive easement improperly granted in land of another for a landscaped yard].) If the prescriptive easement grants a "right to 'use' [that] looks more like 'occupancy,' possession, and ownership," then the prescriptive easement is improper. (Mehdizadeh v. Mincer, at p. 1306.) "[A] prescriptive easement may not be granted if doing so would result in depriving the owner of essentially all rights in the property; in that case, the claimant must proceed under the adverse possession doctrine and show payment of taxes on the disputed property." (Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, 1281.)

Here, the trial court, while labeling the interest a "non-exclusive prescriptive easement," essentially granted the Association the right to occupancy, possession and ownership of garages. In effect, the trial court granted the Association adverse possession of the garages and reduced the Owners' use and possession of the garages to only such use and possession as they would have as members of the Association. The Association, however, does not claim it was entitled to adverse possession. Adverse possession requires the payment of taxes on the disputed property. The Association did not pay taxes on the garages. The trial court erred when it granted a prescriptive easement in favor of the Association to the occupancy, possession and use of the garages.^[3]

The Association nonetheless contends the trial court's grant was a proper exercise of its equitable powers and cites in support Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (Hirshfield). In Hirshfield, a substantial block wall, landscaping, chain link fence, extensive underground water and electrical lines, and a large pool motor installed underground in a concrete and iron enclosure built by the Schwartzes encroached on the Hirshfields' property. The Hirshfields sued seeking, inter alia, an injunction compelling removal of some of the encroachments. The Hirshfield court, relying on the relative hardships doctrine, held the trial court did not err when it denied the Hirshfields' request for an injunction. The court explained that under the relative hardship doctrine a court may permit a trespass by encroachment in another's land if three factors are present: (1) the encroaching party is innocent, that is, the encroachment was not willful or negligent; (2) the encroaching party would suffer irreparable injury if required to remove the encroachment; and (3) the hardship to the encroaching party is greatly disproportionate to the hardship that would be suffered by the other party if the encroachment were allowed to continue. (Id. at p. 758-759.) The Hirshfield court concluded the trial court "properly determined that based on the cost and inconvenience, requiring removal of the improvements on [the Hirshfield property] would cause substantial hardship to the Schwartzes. Yet, continuance of the encroachments would cause little true hardship to the Hirshfields. [Citations.] Stated differently, removal would cause the Schwartzes irreparable injury." (Id. at p. 763.) The result of the case was to grant the Schwartzes an exclusive use to the area where the encroachments existed.

The relative hardship doctrine does not aid the Association. This is not a case involving an encroachment that can only be removed at great cost to the Association with little benefit to the Owners. There is no encroachment; the garages are owned by Cottage 24 and are on the property belonging to Cottage 24. Rather, the Association is seeking to use the garages without the payment of rent to the Owners. This does not represent an irreparable injury or substantial hardship meriting granting the Association occupancy, use, and possession of the garages.

In sum, the trial court erroneously granted a prescriptive easement in favor of the Association.

DISPOSITION

The judgment is reversed. The Owners are entitled to their costs on appeal.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

IRION, J.

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^[1] They are: Eleanor I. Patel la and Grace A. Reed as trustees of the Eleanor I. Patella Family Trust; Cleo Welburn Chapin as trustee of the Cleo Welburn Chapin Trust; Dixie Lee Miceli as trustee of the Lucille N. Doupnik Family Trust; Claudia Diane Spalding; Charles E. Mann and Dorothy J. Mann as trustees of the Dorothy J. Mann Revocable Trust; Philip G. Newey and Denise M. Newey as trustees of an unnamed trust; and Barbara Gilligan as a trustee of an unnamed trust or an individual.

^[2] The Association contends the Owners cannot raise this issue on appeal because it was not raised until after the trial in a posttrial supplemental brief. It argues it is prejudiced because it did not have an opportunity to address the factual basis of this defense at trial. We disagree. The record shows that both the Association and the Owners filed supplemental briefing pursuant to an August 3, 2004, court order requesting additional briefing on the issue of a prescriptive easement. Thus, the issue was properly raised below and preserved for appeal. Moreover, nothing in the record shows the Association objected to the raising of the issue posttrial or sought to present additional evidence. Thus, it appears the Association waived any objections and may not raise them for the first time on appeal.

^[3] We also question the trial court's finding the Association's past use was not permissive but was hostile to that of the Owners. This determination was premised on a finding that Stakich was acting in her role as resident manager when she allowed the Association's members to use the garages. It is, however, difficult to comprehend how Stakich, in her role as one of the Owners of Cottage 24, was not also giving permission to the Association to use the garage. A finding Stakich was not also acting as an Owner would require some evidence that Stakich had hostile relations with the other owners or tended to act irrationally and against her own interests, evidence that was not presented in this case. We also note the trial court failed to discuss the evidence showing the Association paid rent to the Owners and whether this rent paid encompassed rental of the garages.