Gamerberg v. 3000 E. 11th Street, LLC ( 2020 )

Filed 1/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
RUBEN GAMERBERG, B290755
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC604287)
v.
3000 E. 11TH ST., LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Elizabeth Feffer, Judge. Reversed and
remanded.
Zakariaie & Zakariaie, Jack M. Zakariaie; Greines, Martin,
Stein & Richland, Edward L. Xanders and Meehan Rasch for
Defendant and Appellant.
Schorr Law, Zachary D. Schorr and Stephanie C. Goldstein
for Plaintiff and Respondent.
_______________________
In 1950 the owner of property in Boyle Heights agreed to
provide eight parking spaces to the owner of a neighboring lot
who wanted to build a warehouse exceeding the maximum
allowable square footage then permitted by the Los Angeles
Municipal Code (LAMC). A notarized parking affidavit
documenting the agreement was filed with the Los Angeles
Department of Building and Safety (LADBS), which then issued
the second property owner a building permit and, ultimately, a
certificate of occupancy for the completed warehouse. The
parking affidavit was never recorded; nor is there any evidence
the eight parking spaces were ever identified by either property
owner or used by the second property owner or his successors.
3000 E. 11th St., LLC, the successor in interest to the first
landowner, appeals from the judgment entered after a bench trial
upholding the unrecorded parking affidavit as an irrevocable
license in favor of Ruben Gamerberg, the successor in interest to
the second property owner. The LLC, through its owners Steve
Soroudi and his father, contends the trial court erred as a matter
of law by upholding the parking affidavit even though Soroudi
did not have actual or constructive notice of the parking affidavit
when he purchased the property. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994 Soroudi and his father purchased 3001 E. 12th
Street in Boyle Heights through a predecessor to their jointly
owned limited liability corporation, 3000 E. 11th St., LLC.
Soroudi inspected the property before purchase and saw no
indication anyone other than the previous owner’s employees had
parked on the property. Neither the title report nor the deed he
reviewed mentioned the 1950 parking affidavit or listed it as an
encumbrance on the property. From 1994 until 2013 Soroudi
2
allocated the parking spaces on the lot to his tenants. He had no
knowledge of any outside claim to parking rights on the property.
Gamerberg and his wife purchased 3045 E. 12th Street in
2007. He, too, was unaware of the 1950 parking affidavit or any
previous use by his predecessors of parking spaces on
3001 E. 12th Street. In 2013, however, when Gamerberg began
consulting with LADBS about expanding and remodeling the
warehouse on his property, an LADBS plan checker informed
Gamerberg there was a parking affidavit for the property on file.
The notarized affidavit, executed in 1950 between the respective
owners of the two parcels, asserted that the owner of
3001 E. 12th Street would provide eight parking spaces to “be
available at all times for tenants at 3045 E. 12th St.”1 The plan
checker explained that the spaces indicated on the parking
affidavit could be “grandfathered in” to meet the parking
1 The warehouse then planned for 3045 E. 12th Street was
required to provide eight off-street parking spaces. At the time
the affidavit was executed, the LAMC did not require the
document be recorded. In 1958 the LAMC was amended to
require that all such agreements be recorded. (LAMC, art. 2,
§ 12.26, subd. (E)(5) [“5. Recorded Agreements. (Amended by
Ord. No. 111,049, Eff. 5/3/58.) Whenever the off-street
automobile parking spaces required by this section are provided
on a different lot from that on which the use they are to serve is
located, as a prerequisite to the issuance of the required building
permit or certificate of occupancy, the owner or owners of said lot
on which parking is to be provided shall record an agreement in
the Office of the County Recorder of Los Angeles County,
California, as a covenant running with the land for the benefit of
the City of Los Angeles, providing that such owner or owners
shall continue to maintain said parking spaces so long as the
building or use they are intended to serve is maintained.”].)
3
requirements for any expansion, as long as he notified the other
owner of the planned construction and Gamerberg’s need for the
eight spaces described in the affidavit.
In October 2013 Gamerberg’s architectural designer sent
Soroudi a certified letter attaching the parking affidavit and
stating: “This letter serves as verification for [the] existence of
[a] Parking Affidavit granting use of [eight] Parking Spaces to
tenants/owners of 3045 East 12th Street . . . at 3001 East 12th
Street. . . . [P]lease provide us with exact locations as soon as
possible.”
Soroudi returned the receipt for the certified letter,
consulted his attorney and made a claim on his title insurance.
He did not respond to the letter, and neither Gamerberg nor his
architectural designer contacted him further. The architectural
designer provided the plan checker with a copy of the return
receipt for the certified letter as proof Soroudi had been notified.
Based on the receipt, the plan checker approved Gamerberg’s
plans for the warehouse expansion; and LADBS issued a building
permit for the expansion in January 2014.
Nearing completion of the expansion in March 2015,
Gamerberg, having already spent approximately $600,000 adding
a new building behind the existing warehouse, dividing the
warehouse space into five units and adding a mezzanine space,2
again contacted Soroudi to confirm the location and availability of
the parking spaces. Soroudi requested documentation and
2 To comply with City parking requirements, Gamerberg had
added two parking spaces, as well as parking for bicycles, in front
of the warehouse and had been credited with the eight spaces
described in the parking affidavit. The expansion project
ultimately cost approximately $800,000.
4
informed Gamerberg the matter had been referred to his counsel.
In July 2015 Gamerberg again demanded identification of the
parking spaces, but Soroudi said his lawyer was still reviewing
the issue. LADBS advised Gamerberg that the parking affidavit
gave him the right to the eight parking spaces but that, if he was
not able to gain access to the spaces, it was a civil matter
between him and his neighbor.
Gamerberg filed his complaint in this action on
December 16, 2015, asserting causes of action seeking a
declaration of an equitable servitude, an equitable easement or
an irrevocable license.3 He proceeded to trial solely on the third
cause of action for an irrevocable license. After a bench trial at
which Gamerberg and Soroudi, as well as an LADBS supervisor,
each testified, the court ruled an irrevocable license had been
created in 1950 when Gamerberg’s predecessor had expended
money to build the warehouse in reliance on Soroudi’s
predecessor’s agreement to provide eight parking spaces. Relying
principally on the decision in Noronha v. Stewart (1988)
199 Cal. App. 3d 485 (Noronha), the court held the license was
binding on the 1950 property owners’ successors in interest even
if they took title with no knowledge of the parking affidavit.
3 Gamerberg also filed a lis pendens against Soroudi’s
property, which Soroudi successfully moved to expunge after the
superior court concluded Gamerberg had not established probable
validity of any of his claims.
5
DISCUSSION
1. Standard of Review
“The grant of an irrevocable license is ‘based in equity,’”
which we review for an abuse of discretion. (Richardson v. Franc
(2015) 233 Cal. App. 4th 744, 751 (Richardson).) “‘Under that
standard, we resolve all evidentiary conflicts in favor of the
judgment and determine whether the trial court’s decision “‘falls
within the permissible range of options set by the legal
criteria.’”’” (Ibid.)
The legal question raised in this appeal is whether the 1950
parking affidavit can be construed to create an irrevocable license
in favor of Gamerberg that is binding on Soroudi, a subsequent
purchaser without notice. Gamerberg dismissed his causes of
action seeking declarations of an equitable servitude or equitable
easement, each of which typically requires, among other
formalities, actual or constructive notice to bind a subsequent
purchaser.4 (See, e.g., Taormina Theosophical Community, Inc.
v. Silver (1983) 140 Cal. App. 3d 964, 972 [“‘[e]ven though a
covenant does not run with the land, it may be enforceable in
4 The parking affidavit also failed to comply with the formal
requirements then in effect to establish a covenant running with
the land. (See Civ. Code, former § 1468.) Former section 1468
provided: “A covenant made by the owner of land with the owner
of other land to do or refrain from doing some act on his own
land, which doing or refraining is expressed to be for the benefit
of the land of the covenantee, and which is made by the
covenantor expressly for his assigns or to the assigns of the
covenantee, runs with both of such parcels of land.” The parking
affidavit, completed on a form provided by the LADBS, did not
contain an express statement the agreement was intended to
bind the assignees of the original owners.
6
equity against a transferee of the covenantor who takes with
knowledge of its terms under circumstances which would make it
inequitable to permit him to avoid the restriction,’” quoting
Marra v. Aetna Construction Co. (1940) 15 Cal. 2d 375, 378]; see
also Mesmer v. Uharriet (1916) 174 Cal. 110 [“A purchaser of land
for value takes subject only to interests in the land of which he
has actual notice or which appear of record. The rule applies as
well to easements as to claims of a greater interest.”].)
2. The Characteristics of an Irrevocable License
“When a landowner allows someone else to use her land,
the owner is granting a license. A license may be created by
express permission or by acquiescence (that is, by ‘tacitly
permit[ing] another to repeatedly do acts upon the land’ ‘with full
knowledge of the facts’ and without objecting).” (Shoen v.
Zacaria (2019) 33 Cal.App.5th 1112, 1119 (Shoen).) Unlike
covenants that run with the land, such as easements, a license is
a personal right and confers no interest in land: “[I]t merely
makes lawful an act that otherwise would constitute a trespass.”
(Richardson, supra, 233 Cal.App.4th at pp. 758-759; see Eastman
v. Piper (1924) 68 Cal. App. 554, 560 [“‘a valid license to enter on
land . . . rests on the distinction that a license is only an
authority to do an act or series of acts on the land of another, and
passes no estate or interest therein’”]; see Smith, Neighboring
Property Owners (Dec. 2019 supp.) § 7:2 [“A license is best
understood as a residuary category, which apples whenever an
interest does not meet the definitional parameters of a lease or
easement. A license, commonly viewed as an interest of much
less significance than other property rights, is often stated to be
not an interest in land at all, but only the mere permission of the
landowner.”].)
7
In keeping with a license’s permissive nature, “‘[a] licensor
generally can revoke a license at any time without excuse or
without consideration to the licensee.’” (Richardson, supra,
233 Cal.App.4th at p. 751; accord, Golden West Baseball Co. v.
City of Anaheim (1994) 25 Cal. App. 4th 11, 36 [“a license is
normally revocable at will”].) Moreover, “a license, being a mere
personal privilege, is never extended to the heirs or assigns of the
licensee. Indeed, any attempt by the licensee to assign the
license ordinarily destroys and terminates it.” (Eastman v. Piper,
supra, 68 Cal.App. at p. 562; accord, Beckett v. City of Paris Dry
Goods Co. (1939) 14 Cal. 2d 633, 637; Richardson, at p. 751;
see 6 Miller & Starr, Cal. Real Estate (4th ed. 2019) § 15.2.)
Nonetheless, “[a]n otherwise revocable license becomes
irrevocable when the licensee, acting in reasonable reliance
either on the licensor’s representations or on the terms of the
license, makes substantial expenditures of money or labor in the
execution of the license, and the license will continue ‘for so long
a time as the nature of it calls for.’” (Richardson, supra,
233 Cal.App.4th at pp. 757-758, quoting Stoner v. Zucker (1906)
148 Cal. 516, 520 (Stoner); see Cooke v. Ramponi (1952) 38 Cal. 2d
282, 286 (Cooke); Shoen, supra, 33 Cal.App.5th at p. 1119;
Hammond v. Mustard (1967) 257 Cal. App. 2d 384, 389.) This
principle is grounded upon “the doctrine of equitable estoppel; the
license, similar in its essentials of an easement, is declared to be
irrevocable to prevent the licensor from perpetrating a fraud
upon the licensee.” (Cooke, at p. 286; see Richardson, at p. 751
[in such cases, “the licensor is said to be estopped from revoking
the license, and the license becomes the equivalent of an
easement, commensurate in its extent and duration with the
right to be enjoyed”].) “[C]ourts may exercise their power to
8
declare a license irrevocable only if the expenditures in reliance
on the license are ‘substantial,’ ‘considerable’ or ‘great,’” a
requirement that ensures “courts use their power to create
irrevocable licenses sparingly.”5 (Shoen, at pp. 1119-1120.) “‘A
license remains irrevocable for a period sufficient to enable the
licensee to capitalize on his or her investment. He can continue
to use it only as long as justice and equity require its use.’”
(Richardson, at p. 758.)
3. An Irrevocable License Is Not Binding on a Subsequent
Purchaser Who Takes Without Notice
a. Noronha does not accurately characterize the
assignability of an irrevocable license
Assuming the 1950 parking affidavit created an irrevocable
license in favor of Gamerberg’s predecessor and against Soroudi’s
based on the expenditures in building the original warehouse, the
determinative issue here is whether that license bound Soroudi, a
5 “Courts have faithfully limited the exercise of their power
to declare a license to be irrevocable to those situations in which
the licensee has expended substantial amounts of money or labor
in reliance on a license. Nearly every case where a license has
been declared irrevocable has involved the licensee’s permanent
alteration of the land and the ensuing upkeep, whether by
building, altering or upgrading a roadway [citations],
constructing a ditch, canal or levee to transport water [citations],
erecting a wall [citation], or raising living quarters [citation].
The high-water mark in this regard is Richardson, supra,
233 Cal. App. 4th 744, which upheld an irrevocable license based
upon the licensee’s extensive acts of landscaping that entailed the
installation of irrigation and lighting systems; the purchase,
planting and replanting of several large and expensive trees for
more than two decades; and the daily watering and lighting of
that landscaping.” (Shoen, supra, 33 Cal.App.5th at p. 1120.)
9
subsequent purchaser without notice. The trial court based its
ruling Soroudi was bound by the license on Noronha, supra,
199 Cal. App. 3d 485, in which a purchaser of a lot in a subdivision
received permission from the (apparent)6 owner of the
neighboring lot to construct a fence that encroached on the
neighboring lot. Though the completed fence was open and
obvious to the couple who later bought the neighboring lot, they
claimed they had not realized the fence encroached on their
property. The court of appeal found the lot owner who built the
fence was entitled to an irrevocable license based on his
expenditures on the fence, which “acts, for all purposes, as an
easement, estopping the grantor and his successor from revoking
it.” (Id. at p. 490.) The court rejected the claim by the new
owners of the neighboring lot that they had not understood the
fence was on their property, because the prior owner testified he
had told them of this fact at the time of purchase. (Id. at p. 491.)
Notwithstanding this factual basis for a finding of actual notice,
the court stated, “Nor is plaintiffs’ knowledge required for the
license to become irrevocable,” reasoning that once the
expenditures had been made, “‘the license will continue for so
long a time as the nature of it calls for.’”7 (Ibid., quoting Cooke,
supra, 38 Cal.2d at p. 286.)
6 Noronha is more frequently cited for its holding that a
grantor who subsequently takes title in property is bound under
the doctrine of after-acquired title for promises made to a grantee
who believed the grantor already held title. (Noronha, supra,
199 Cal.App.3d at pp. 489-490.)
7 This language misstates the relevance of notice to
irrevocable licenses. Notice to a subsequent purchaser does not
affect a finding of irrevocability against the original grantor;
10
The analysis in Noronha is flawed, however; the court
failed to recognize that not one of the cases finding a license
irrevocable, including Cooke, Stoner and Richardson, addressed
the rule in the context of a subsequent purchaser without notice.8
Soroudi argues the correct rule is articulated in Churchill v.
Russell (1905) 148 Cal. 1 (Churchill), in which the Supreme
Court considered a parol agreement (or license) permitting a
neighboring landowner and his wife to draw water from a well on
the grantor’s property. The neighbors not only drew the allocated
water from the well but also made valuable improvements on the
land. When the grantor died, the subsequent purchaser of the
property sought an injunction to stop the neighbors from
diverting water. The Court agreed the license would have been
irrevocable against the original grantor, but held it was not
against the subsequent purchaser who had taken the property
without notice of the agreement: “Under these circumstances it
was necessary for the defendants, in asserting their equitable
interest, to allege and prove, and for the court to find, the
existence of such notice in order to support their equitable claim.
This proposition is so familiar that no citation of authorities is
necessary to support it.” (Id. at p. 6; see also Blankenship v.
rather, it governs the issue of assignability to subsequent
purchasers, as set forth below.
8 Notwithstanding Gamerberg’s assertion that the holding in
Noronha is “binding precedent,” we are not obligated to follow a
decision by a court of appeal with which we disagree. (Martinez
v. Public Employees’ Retirement System (2019) 33 Cal.App.5th
1156, 1171; see Gonzalez v. Lew (2018) 20 Cal.App.5th 155, 166,
fn. 7 [“[t]here is no horizontal stare decisis in the California
Court[s] of Appeal”]; Jessen v. Mentor Corp. (2008)
156 Cal. App. 4th 1480, 1490, fn. 10 [same].)
11
Whaley (1899) 124 Cal. 300, 304-305 [license to use and expand
ditch for irrigation may have been irrevocable against original
grantor but was not against subsequent purchasers if they took
without notice, who were “protected by the recording acts”
against “secret defects in a title”; case remanded for further
findings as to notice].)
That the Supreme Court in Churchill accurately stated the
common law rule that irrevocable licenses do not survive transfer
of the property to a purchaser without notice is confirmed by the
statements of commentators and holdings of courts in other
jurisdictions. For instance, “[a] subsequent purchaser of the
servient property takes title subject to an irrevocable license if
such purchaser could be charged with notice of the usage at the
time of purchase. Hence, a subsequent purchaser with notice
cannot revoke the license, but it has been held that a bona fide
purchaser without notice receives the land free of the irrevocable
license.” (Bruce & Ely, The Law of Easements and Licenses in
Land (2019) § 11:9; accord, 8 Thompson on Real Property (2019)
§ 64.05(b) [“Even though the license is held to be irrevocable it
may still be lost if the property is sold to a bona fide purchaser.
Thus in the case of a buried water line it was held that the sale of
the burdened property to a party who had no notice of its
existence resulted in termination of the interest.”]; Industrial
Disposal v. City of East Chicago (Ind.Ct.App. 1980) 407 N.E.2d
1203, 1206 [“our courts have held that where an owner of real
estate gives a license which becomes ‘irrevocable’ and then sells
the burdened estate to a third party, who purchases in good faith
for value and without notice of the license, or of such facts as
would put a man of ordinary prudence on inquiry, the third party
takes the land free of any rights of the licensee”].) Conversely, in
12
Blackburn v. Lefebvre (Ala.Ct.Civ.App. 2007) 976 So. 2d 482 the
court held that an irrevocable license to use a boat pier was
enforceable against a subsequent purchaser because the
underlying agreement had been recorded and thus provided
notice to the purchaser. (Id. at p. 495; see also Tatum v. Dance
(Fla.Dist.Ct.App. 1992) 605 So. 2d 110, 112 [“a subsequent vendee
having notice of the licensee’s use at the time of purchase takes
the land burdened with the license”]; Kovach v. Gen. Tel. Co. of
Pennsylvania (Pa.Super. Ct. 1985) 489 A.2d 883, 885 [“[o]nce
irrevocability is established, ‘successors-in-title take subject to an
irrevocable license if they had notice of the license before
purchase’”].)
b. To the extent an irrevocable license functions as an
easement, it must be recorded to bind subsequent
purchasers without actual notice
Struggling to parse the various threads of common law
servitudes in the context of modern commercial settings,
Division Three of the Fourth District once observed, “Ultimately,
the label given to [the plaintiff’s] ‘interest’ is of little importance.
Arrangements between landowners and those who conduct
commercial operations upon their land are so varied that it is
increasingly difficult and correspondingly irrelevant to attempt to
pigeonhole these relationships as ‘leases,’ ‘easements,’ ‘licenses,’
‘profits,’ or some other obscure interest in land devised by the
common law in far simpler times. Little practical purpose is
served by attempting to build on this system of classification.”
(Golden West Baseball Co. v. City of Anaheim, supra,
25 Cal.App.4th at p. 36; see French, Toward A Modern Law of
Servitudes: Reweaving the Ancient Strands (1982) 55 So.Cal.
L.Rev. 1261 [“[t]he law of easements, real covenants, and
13
equitable servitudes is the most complex and archaic body of
American property law remaining in the twentieth century”];
French, supra, 55 So.Cal. L.Rev. at pp. 1262-1263 [“[t]he advent
of comprehensive governmental land use regulation in the
twentieth century actually increased the incidence of private land
use arrangements for two reasons: public regulation itself often
uses private servitudes as tools of regulation; and the inherent
shortcomings of public regulation encourage private
arrangements”].)
Attempting to simplify this doctrinal thicket, the
Restatement Third of Property, Servitudes, promulgated in 2000,
“swe[pt] away negative easements, equitable servitudes, and
executed parol licenses because the doctrinal differences that
formerly distinguished these servitude categories have been
eliminated.” (French, Highlights of the New Restatement (Third)
of Property: Servitudes (2000) 35 Real Prop. Prob. & Tr. J. 225,
228; see Rest.3d Property, Servitudes, §§ 1.2(4) [“[a]s used in this
Restatement, the term ‘easement’ includes an irrevocable license
to enter and use land in the possession of another”]; 7.14, com. a
[“[i]nstead of drawing a distinction between servitudes based on
the way they were created, the rules stated in this section
distinguish among them on the basis of the function they serve”].)
The Restatement takes the position “that all unrecorded
servitude benefits, regardless of the manner of their creation, are
subject to extinguishment under the recording act. The rationale
is that societal welfare is generally enhanced by increasing the
ability to determine land titles by resort to the public land
records because it reduces the costs and increases the security of
transactions in land. The benefits produced by subjecting all
servitudes, whether written or unwritten, to extinguishment
14
under the recording act will outweigh the social costs involved in
the loss of useful servitudes and the measures knowledgeable
servitude holders will take to protect against extinguishment.”
(Rest.3d Property, Servitudes, § 7.14, com. a; see Citizens for
Covenant Compliance v. Anderson (1995) 12 Cal. 4th 345, 354-355
(Citizens for Covenant Compliance) [recognizing efforts to merge
common law servitude doctrines: “Whether the amendments to
[Civil Code] section 1468 have accomplished this fusion in
California is beyond the scope of the narrow issue before us”].)
Like the Supreme Court in Citizens for Covenant Compliance,
we need not determine whether the Restatement (Third)’s push to
simplify the analysis of these doctrines controls here, because
California courts have long recognized that “[a]n irrevocable license
. . . is for all intents and purposes the equivalent of an easement.”
(Barnes v. Hussa (2006) 136 CalApp.4th 1358, 1370; accord, Shoen,
supra, 33 Cal.App.5th at p. 1120 [“such licenses are functionally
indistinguishable from easements”]; cf. Eastman v. Piper, supra,
68 Cal.App. at p. 562 [“as the qualities of inheritability and
assignability are inconsistent with a license, we must conclude that
something more than a license was intended to be granted; that it
was intended to create an inheritable interest in a servient estate—
in short, an easement”].) As one commentator has explained, “[t]he
term ‘irrevocable license’ is a contradiction in terms, given the
traditional definition of a license in land. Functionally, an
irrevocable license does not differ at all from an easement. The
only distinction is that the irrevocable license, if oral, might be
invalidated from taking effect as an easement by the Statute of
Frauds. . . . Analysis of the problem would be much improved if
courts would drop the misnomer ‘irrevocable license,’ and instead
assume that the parties intended to create an easement having a
15
duration longer than at the granter’s will.” (Smith, Neighboring
Property Owners, supra, § 7.2; see also 4 Powell on Real Property
(2019) Easements and Licenses, § 34.24 [declaring that an
“irrevocable relationship should no longer be called a license, but
rather an easement”]; Conard, An Analysis of Licenses in Land
(1942) 42 Colum. L.Rev. 809, 820 [“[w]hen the parties have so acted
that an unwritten license becomes irrevocable, an easement has
arisen”].)
Easements, of course, are likewise unenforceable against a
subsequent purchaser without notice (except in limited
circumstances not applicable here).9 (See Mesmer v. Uharriet,
supra, 174 Cal. at p. 116; Pollard v. Rebman (1912) 162 Cal. 633,
634.) Accordingly, when an easement or other use is not visible and
does not provide actual notice to the purchaser, it must be recorded
to be enforceable. (See Civ. Code, §§ 1213, 1214.) “‘“The recording
statutes operate to protect the expectations of the grantee and
secure to him the full benefit of the exchange for which he
bargained.”’” (Citizens for Covenant Compliance, supra, 12 Cal.4th
at pp. 358-359.)10 Soroudi persuasively argues it would make no
sense to conclude that a document evidencing an irrevocable license
need not comply with the recording acts, when another creating an
easement that conveys an actual interest in land must do so. (See
9 See Restatement Third of Property, Servitudes. section 7:14
and comment b (discussing prescriptive easements and those that
provide necessary access or utilities to landlocked land).
10 As discussed, neither Soroudi nor Gamerberg knew of the
parking affidavit when he bought his property. Just as
Gamerberg knew he was purchasing a property with limited
parking, Soroudi understood the parking spaces on his property
were free and clear of encumbrances.
16
Smith, Neighboring Property Owners, supra, § 7:2 [an irrevocable
license is “a residuary category” for “failed easements”].)
c. LADBS’s failure to require recording of the 1950
parking affidavit and its present belief the parking
affidavit was binding on subsequent purchasers are
irrelevant
California’s recording statutes, Civil Code section 1213
et seq., were enacted in 1872 and establish a reliable system by
which the expectations of buyers and sellers of property can be
vindicated. Certainly, the lawyers for the City of Los Angeles
should have been fully cognizant of the requirements of the
recording statutes in 1950 and understood that “[a]n unrecorded
instrument is valid as between the parties thereto and those who
have notice thereof” (Civ. Code, § 1217), but not against anyone
else.11
Thus, it is doubtful the City’s lawyers reviewed the 1950
parking affidavit for form, even though it is virtually certain the
parking affidavit was intended by LADBS, as well as its
signatories, to create an interest running with the land, that is, a
covenant or easement that would be assignable and binding on
subsequent purchasers as long as the building stood. The current
version of the parking affidavit, which is required to be recorded
and supported by consideration, creates a covenant that “shall
11 We reject Gamerberg’s argument the existence of the
parking affidavit in the LADBS files provided adequate notice to
Soroudi. (See Field-Escandon v. DeMann (1988) 204 Cal. App. 3d
228, 236-237 [“[t]he existence of the permit in the public records
of a governmental agency does not have the same presumptive
effect of actual knowledge as recorded documents of title to real
property, where the act of recording imparts constructive notice
of the contents of the instrument”].)
17
run with both the covenantor(s) and covenantee(s) above
described land, shall be binding upon the covenantor, the
covenantor’s future owners, encumbrances, and their successors,
heirs, or assignees for the benefit of the covenantee and the
covenantee’s future owners, encumbrances, and their successors,
heirs, or assignees and shall continue in effect until the
Superintendent of Building in the City of Los Angeles determines
the offsite parking spaces covered by this covenant is no longer
required by law.” (LADBS “Covenant and Agreement Regarding
Maintenance of Off-Site Parking Space,” retrieved at
[as of Jan. 21,
2020], archived at .)
In light of the absence of any reference to assignees in the
1950 parking affidavit and the failure of the original signatories
to record it, the testimony of the LADBS supervisor that the
affidavit remained enforceable can best be understood as a
comment on the Department’s current practices, which has no
relevance to the question in this case. But whatever the
supervisor meant, as a non-lawyer, he was not qualified to
provide legal advice and appears to have unintentionally misled
Gamerberg on the survivability of the unrecorded parking
affidavit. That mistake, however unfortunate, does not alter our
conclusion.
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DISPOSITION
The judgment is reversed, and the matter is remanded to
the superior court for entry of judgment in favor of
3000 E. 11th St., LLC. 3000 E. 11th St., LLC is to recover its
costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
19