In a previous post, we discussed the way the “magical” power of law in real estate shifted from the physical and verbal act to the written word. It is useful to keep the idea of magic words in mind whenever you are dealing with a legal document.
These magical documents which call into being some relationship, entity, obligation, etc. are called “instruments” in legalese, and as you likely know, words are everything in law—perhaps nowhere so much as real estate law. And yet, these crucial documents are drafted with dangerous ambiguities more often than you might think, even by professional lawyers.
This is the story of one such case in California.
Easements aren’t always easy: Zissler v. Saville (2018), 29 Cal. App. 5th 630
An easement is the right to use a property in some way without having any rights of ownership, usually by the explicit grant of the owner of the “burdened” property. (See our previous post “Introduction to Easements.”)
Zissler v. Saville is a typical case: there was a written easement granting vehicle and pedestrian traffic across the Green Meadows property along a ten-foot unpaved road to the rear of the Picacho property, which was undeveloped and inaccessible from the front of the property. The easement was drafted by the previous owner of the Picacho property, Peter Lupoli, who was himself a lawyer—helping to emphasize the moral of our story.
The easement was basically used by the Lupolis’ gardener for the purpose of maintaining the back of the property. Problems arose when Patrick Saville bought the property with the plan of developing the unused back portion and using the easement for heavy construction equipment.
The easement simply provides “ingress and egress to vehicles and pedestrians.” It doesn’t say anything about how often the easement can be used or by what kind of vehicles. James Zissler, owner of the burdened Green Meadows property, argued that because the language of the easement was “general,” the use of the easement should be governed by original intent and historical use. Lupoli testified to his intentions that the easement was meant to be used “sparingly and infrequently,” but unfortunately, he didn’t put those intentions in writing. Saville argued that there was nothing ambiguous about the easement at all: the right of use should be interpreted according to the explicit language of the written easement.
In the original trial decision, the court sided with Zissler, concluding that the easement was general and ambiguous. However, the appellate court disagreed—the easement is quite specific about the location and purpose of the easement, so it is not a “general easement” at all. The use of external information (extrinsic evidence) such as intention to determine the meaning of the contract was deemed a mistake, because such evidence must prove the language is “susceptible of more than one reasonable interpretation” (quoting L.A. City Employees Union v. City of El Monte (1986)). The appellate court concluded that the easement was clear, and so intention or historical usage was irrelevant: “the language of the easement is not reasonably susceptible to a meaning of ‘use for landscaping purposes only.’”
So while the original court did take into account intention, in the end, the written word reigned supreme. The moral of the story is always be specific. In any contract that you enter, you might end up giving someone far more rights (or burdening yourself with more obligations) than you intended, and written documents will end up carrying far more weight than good intentions. In this case, an agreement that worked perfectly well for the original owners became an inherited headache for the new owners. Real estate transactions in California can be among the most complex and costly transactions most people will make in their lives. And as we’ve seen, it’s not enough to just have (or be) a lawyer. You need a California real estate attorney with knowledge, experience, and an eye for detail. You need the services of Greenacre Law.