It is not unusual for adjoining landowners to grant one or the other a license to use a portion of their property, whether it is for fence placement, ingress and egress, gardens, or for some other purpose in order to be a good neighbor. Ordinarily, such a license – a consent or agreement to permit a use or activity – is revocable. Thus, the person granting the license can ordinarily withdraw consent and the use or activity must cease. However, there are situations where a revocable license and can become irrevocable and cannot be withdrawn.
A good illustration of the principles that can potentially lead to a revocable license becoming irrevocable is set forth in the recent case of Shoen v. Zacarias, a decision by the California Court of Appeals for the Second Appellate District. Zacarias and Shoen were adjoining landowners on hillside property with a flat patch of land between the properties that was partially on Zacarias’ property and partially on Shoen’s property. When Zacarias bought her property she believed the flat patch was hers and, over the first two years of her ownership she:
. . . brought in contractors to grade the patch to make it flatter, (2) removed stacks of bamboo and cleared overgrown brush from the patch, (3) installed new ornamental gravel, (4) planted a low, 18-inch-tall hedge and built a foot-tall wooden fence around the perimeter of the patch, (5) populated the patch with a 10 foot-by-10 foot cloth cabana, a chaise lounge, a table and chairs, none of which is affixed to the ground and each of which remains movable, (6) installed underground electrical conduit from her house to the patch, and (7) installed sprinklers and then replaced them with a drip system in order to water the hedges on the patch.
In October 2005, the prior owner of Shoen’s land did a survey of his property line and discovered that 490 square feet of the flat patch belonged to him. The prior owner shared this discovery with Zacarias, but told her she could continue to use the entire flat patch. The prior owner told Zacarias that his willingness to let her keep her furniture in the disputed area lasted only as long as he owned the property.
In 2011-2012 Shoen acquired the land from the prior owner and in May 2012 asked Zacarias to vacate the disputed area. Zacarias ignored Shoen’s request.
Shoen sued Zacarias for damages, injunctive and declaratory relief on theories of (1) trespass, (2) nuisance, (3) ejectment, and (4) negligence. Zacarias answered and counter-sued for damages and injunctive relief on theories of (1) prescriptive easement, (2) equitable easement and (3) nuisance. The matter went to trial (twice). The trial court’s primary ruling was that Zacarias should be awarded an exclusive irrevocable license to use the disputed area and that this license would last forever, even after Zacarias sold the property. Zacarias appealed and the Appellate Court reversed finding the trial court had abused its perpetual irrevocable license.
The Appellate Court acknowledged that when a landowner grants someone permission to use her land, she generally retains the right to revoke that license at any time, but, may be stopped from revoking that license—and the license will accordingly become irrevocable for “so long a time as the nature of it calls for”—if the person using the land has expended money or its equivalent in labor improving the land “in the execution of the license.” The Appellate Court further noted the expenditure of money or labor can make a license irrevocable only if that expenditure is “‘substantial,’” “considerable” or “great” and found that the expenditures and labor Zacarias expended under the license granted by Shoen’s predecessor was not so great as to be “substantial,” “considerable” or “great.” In addition, the Appellate Court declined to hold that a licensee’s annual cost of upkeep, without more, warrants a perpetual license to recover the investment in upkeep. Thus, the Appellate Court determined Shoen was fully within his rights to revoke the license that had been granted Zacarias by Shoen’s predecessor.
If you are asked to permit, or are permitting, someone else to use your property, it is imperative that you seek legal advice on the potential consequences of such explicit or tacit permission. Failure to exercise your property rights may cause you to lose your property rights without a properly drafted agreement and vigilance against improvements to, and encroachments upon, the property.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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