The terms easements and licenses are sometimes used interchangeably by laypersons and lawyers alike. Easements and licenses, however, represent very different and distinguishable rights. An easement creates an interest in real property and must be in writing. A license, on the other hand, grants authority to a person to do an act or acts on real property owned by another and may be oral or written. The person granting the authority is the licensor; the person to whom the authority is granted is the licensee. The authority conferred by the licensor is personal to the licensee and does not create an interest in real property. Easements can be temporary or permanent. A license is generally revocable but a license can become irrevocable if a licensee expends substantial money or performs significant labor on the improvements installed within the license area with the consent or knowledge of the licensor. An irrevocable license becomes much like an easement in that it is enforceable by a successor licensee against a successor licensor. In some cases, as demonstrated in a recent appellant court decision, Richardson v. Franc (2015) 2015 DJDAR 1135, it is possible to have both an easement and a license over the same area.
In Richardson v. Franc, the appellate court upheld a trial court ruling that the Francs (defendants and appellants) would continue to own a fee interest in an easement area, subject to an existing recorded access and utility easement, but would also be subject to an irrevocable parol (oral) license. Both the easement and the irrevocable license were in favor of their neighbors, the Richardsons (plaintiffs and respondents). The previous owners of the Richardsons’ property constructed their home in 1989. To provide access to the home, the project included a 150 foot long driveway within a 30 foot easement over the adjoining property. The easement was for access and utility purposes only. The original owners of the Richardsons’ property used the easement for access but also added significant landscaping to the easement area, including trees, shrubbery and flowers. A centrally controlled drip irrigation system was installed to provide water to the individual trees and plants. Water fixtures were later added along the driveway for fire safety. Electrical lights, later replaced by solar lighting, were installed along the driveway. The original owners maintained the landscaping and improvements for approximately 10 years before selling to the Richardsons in 2000. After the Richardsons moved in, they continued to maintain the landscaping and improvements in the easement area. In 2004, the Francs purchased the property burdened by the easement.
For six years, the Richardsons and Francs had a harmonious relationship. There was no indication of a problem until late 2010 when Mr. Franc cut the irrigation and electrical lines running to the easement area, and disassembled the water valves on either side of the Richardsons’ driveway. Mr. Franc’s attorney then sent a letter to the Richardsons demanding that they remove all landscaping and improvements from the driveway area within in five days. The Richardsons responded by filing a lawsuit.
The trial court granted a preliminary injunction in favor of the Richardsons and the water irrigation system was restored. Following a bench trial and the court’s on-site visit to the property, the trial court denied the Richardons’ request for an equitable easement but instead granted to the Richardsons an irrevocable parol license to maintain and improve the landscaping, irrigation, and lighting within the 30 foot wide and 150 foot long easement. The Francs appealed.
The Richardsons initially had requested an equitable easement for the landscaping and improvements. The trial court denied relief for an equitable easement because an equitable easement requires that the party claiming the easement must be without knowledge or means of knowledge of the facts. The Richardsons’ predecessor-in-interest had constructive knowledge that the purpose of the easement was for access and utilities purposes only and did not permit the installation and maintenance of landscaping and other improvements. As a result, the trial court determined that it could not make a finding for equitable easement. Because a license is a right to do certain things on the land of another with full knowledge of the facts, and may be implied from the relationship between the parties, custom and usage, the trial court found that an irrevocable parol license existed in favor of the Richardsons which permitted the Richardsons to maintain the landscaping and other improvements in the easement area.
The Francs argued that the Richardsons reliance on the continued permission to make improvements was not reasonable as a matter of law. The trial court, as upheld by the appellate court, found that the Francs knew the Richardsons were continuing to improve the easement area. The Francs failed to raise any concerns regarding the continued maintenance and improvement of the easement area until six years after the Francs had purchased their property. Additionally, no objection had been made by the Francs predecessor-in-interest for the previous 14 years. The appellate court stressed that the Francs together with their predecessor-in-interest had acquiesced in the construction and maintenance of the landscaping and improvements for 20 years. The appellant court found that this acquiescence was ample evidence that adequate and sufficient permission was granted to the Richardsons to continue to maintain the landscaping and other improvements in the easement area.
The Francs further argued that in order for an irrevocable license to exist, there must be substantial expenditures in reliance on the license. The previous owner installed the landscaping, water irrigation system and lighting and bore their maintenance expenses for a 10 year period. After the Richardsons purchased the property in 2000, they continued the maintenance of the improvements, which included monthly payment of water bills, landscapers, gardeners, and replacement of plants and irrigations parts. The trial court found that the Richardsons had presented sufficient evidence to document their own and the previous owner's substantial expenditures on the maintenance and improvement of the easement area.
The Francs also challenged the unlimited physical scope and duration of the license granted by the trial court. The appellate court, citing long established case law principles, found that an otherwise revocable license becomes irrevocable when the licensee acts in reliance on either the licensor’s representations or the terms of the license and makes substantial expenditures of money or labor. A license remains irrevocable for a period sufficient to enable the licensee to capitalize on his or her investment.
The appellate court affirmed the trial court ruling. As a result, the Francs continued to own the underlying fee estate for the easement area, but their interest was subject to the existing recorded access easement and the irrevocable parol license in favor of the Richardsons for continued maintenance of the landscaping and improvements in the easement area.
The Richardson v. Franc ruling was unusual in that it granted an irrevocable license over an existing easement area. The court may have been responding, at least in part, to Mr. Franc as a bad actor. Mr. Franc inexplicably cut the irrigation and electric lines running to the easement area without notice or explanation to the Richardsons. Mr. Franc would have been much better served by initiating a quiet title action.
To avoid future property disputes, purchasers of property should review their title to determine which easements apply and the purpose of those easements prior to closing. Purchasers should also inspect the property to make sure that the current use of the property is consistent with the easement purposes. Property owners who wish to expand their use of an easement over an adjoining property should obtain the agreement of the underlying fee owner. Any expansion of the easement use should be documented through a modified easement or a license agreement, as appropriate, setting out the terms of the expanded use. A modified easement agreement or memorandum of license could then be recorded. These suggestions could potentially assist all parties in avoiding the time and expense of years of litigation.