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Termination of Easement Through Doctrine of Merger Requires a Deep Dive Into The Chain of Title

Bay Area Real Estate Attorneys Address The Issue

We recently represented a commercial property owner in Oakland that was sued for Quiet Title by the neighboring property owner. The neighbor claimed an easement over our client’s property consisting of an adjoining strip of land . The neighbor wanted to use the land as parking for the neighbor’s adjoining commercial business. Our client’s tenant, a restaurant, needed the strip of land for parking as well. The lawsuit was filed after our client fenced off the area to prevent plaintiff’s use.

At first review of the history of the chain of title it appeared that plaintiff did, in fact, have an express easement. However, a review of the chain of title subsequent to the creation of the express easement revealed that the previously created easement was extinguished by merger. Pursuant to the well-known doctrine of merger codified in Civil Code Sections 805 and 811, the express easement that was previously created in 1960 was extinguished when both client’s property (the servient tenement) and the plaintiff’s property (the dominant tenement) were under the common ownership of a third party in fee simple absolute from May, 1965 to February, 1970.

When the third-party common owner deeded plaintiff’s property to plaintiff’s predecessor in interest in February, 1970, he did not reserve an easement. Subsequent deeds by our client’s predecessor in interest that purported to grant the same easement burdening our client’s property, including the same legal description, were ineffective. The easement description in the deeds was meaningless, as our client’s predecessor in interest could not convey an easement over property that he did not own at the time of the conveyance. Subsequent deeds purporting to convey the same easement, including the legal description, were ineffective for the same reason.

Plaintiff’s title company identified the grant of easement in the legal description, so plaintiff assumed that he had an easement, as did plaintiff’s counsel and the title company. Only a deep dive into the chain of title subsequent to the express grant of easement in 1960 revealed that the purported easement was forever extinguished by the doctrine of merger in May, 1965. We retained a title expert to help us trace the complicated chain of title to reach our conclusion. After drafting a detailed letter to opposing counsel explaining the results of our research, plaintiff voluntarily filed a Request For Dismissal of the Complaint. Our client never had to file responsive pleadings.


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The moral of the story when faced with title disputes, easement disputes, boundary line disputes and the like is to perform a thorough analysis of the history of the property, including the complete chain of title, even after you think you have searched far enough. You may be surprised with what you find, like we were in this case. Also, do not be afraid to retain an expert as a privileged consultant. The result for our client in this case was the avoidance of costly litigation and confirmation that the restaurant tenant maintained its parking lot.