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Zissler v. Saville

Facts: A servient estate owner grants an appurtenant easement for access, ingress and egress to vehicles and pedestrians to an adjacent dominant estate. The easement is used for landscaping purposes. Both estates are sold to new owners. The dominant estate owner proposes a large construction project requiring them to use the easement for heavy machinery.

Claim: The servient estate owner seeks to limit the easement’s use to 12 vehicle trips per year unrelated to construction activity, claiming the easement is ambiguous and needs to be clarified based on its historic landscaping use since it does not specify the types of vehicles or frequency of use allowed.

Counterclaim: The dominant estate owner seeks to use the easement for their construction project, claiming the easement is not ambiguous since a failure to disclose the types of vehicles or frequency of use allowed does not constitute an ambiguity.

Holding: A California court of appeals holds the dominant estate owner may use the easement for access, ingress and egress to vehicles and pedestrians, including for construction purposes, since the easement is not ambiguous. [Zissler v. Saville (November 29, 2018)_CA6th_]

Editor’s note — Even if the original owners had intended to limit the easement to landscaping use, this undisclosed limit would be unenforceable since the new dominant estate owner is a bona fide purchaser and was not notified of this restriction. Furthermore, appurtenant easements accommodate future development and cannot be restricted based on historic use.

See Legal Aspects of Real Estate Chapter 13: Easements: running or personal and Chapter 14: Creating an easement.

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