Filed 11/23/15 Syverson v. Kuhn CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KORTNEY SYVERSON, D067263

Plaintiff, Cross-defendant and Respondent, (Super. Ct. No. 37-2011-00102504- v. CU-OR-CTL)

R. DAVID KUHN, Individually and as

Trustee, etc.,

Defendant, Cross-complainant and Appellant;

MICHAEL B. EMERY, Individually and as Trustee, etc. et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County, Randa

Trapp, Judge. Affirmed.

Vantage Law Group and Michael H. Riney for Defendant, Cross-complainant and

Appellant R. David Kuhn and for Defendants and Appellants Michael B. Emery and

Linda G. Emery.

Steven J. Roberts and Steve J. Roberts for Plaintiff, Cross-defendant and

Respondent. This case involves four northern and four southern neighboring hillside properties.

Grant deeds on the southern properties contained restrictions limiting residences thereon

to a single story. We conclude the use restrictions, which were enforceable by a power of

termination, expired due to the northern property owners' failure to record a notice of

intent to preserve their interest under the Marketable Record Title Act (Civil Code,

§ 880.020 et seq.) (the Act). (Undesignated statutory references are to the Civil Code.)

We also conclude the use restrictions were not alternatively enforceable as equitable

servitudes.

FACTUAL AND PROCEDURAL BACKGROUND

The Parties

R. David Kuhn, Michael B. Emery, and Linda G. Emery (together, Appellants)

own four hillside lots in the Clairemont area of San Diego, California (the northern lots).

The northern lots have views of Mission Bay. In 2009, Kortney Syverson purchased a

home to the south of the northern lots, which he intended to remodel to add a second

story. Janice Sopher, Bradley and Kim Johnson, and Ruth Crowell also own properties

south of the northern lots (together with Syverson's property, the southern lots).

Use restrictions in grant deeds on Syverson's property limited any residence on the

property to a single story. Syverson sued Appellants and the owners of the other southern

lots to invalidate the restrictions on his property. The trial court entered default against

the southern lot owner defendants. They are not parties to this appeal. Thus, this dispute

is between Syverson (owner of one of four southern lots) and Appellants (owners of the

northern lots).

2 History of the Properties

In 1949, Betty Rotner acquired the southern lots through two grant deeds from

Evelyn Wurzell and Union Title Insurance and Trust Company. Both deeds contained

use restrictions that ran with the land and limited the properties such that they could "be

used for residential purposes only and such residence will be a single story with shed-

type roof, or if gabled roof, the height of said gabled roof to be no more than two feet"

(Union/Wurzell Restrictions). A violation of these restrictions would cause the land to

revert and revest in the grantor, its successors, or assigns.

Rotner subsequently transferred Lot 5, which is now Syverson's property, to

Valentine Putman and Alice Putman. That grant deed also included restrictions (Rotner

Restrictions): "Any residence placed on this property must be single story with shed type

roof or with a Gable roof providing the Gable shall not be more than two feet high." (The

Rotner Restrictions and Union/Wurzell Restrictions are collectively referred to as the Use

Restrictions.)

In 1951, Kuhn's parents purchased the northern lots. Approximately one year

later, they sold two of the four northern lots to the Emerys' family. The northern lots

have remained in the Kuhn and Emery families since that time.

Syverson acquired his property in 2009. The grant deed to him did not include or

reference the Use Restrictions.

The Prior Action

In 1976, Sopher's predecessor in title, John P. Suitts, Jr., filed an action to

invalidate the Union/Wurzell Restrictions (the Prior Action). Michael Emery was a party

to that action. Suitts alleged the grant deed upon which he took title did not reference the 3 Union/Wurzell Restrictions. He argued the restrictions should not be interpreted as

conditions subsequent with right of reverter and instead were covenants, which could not

be enforced against him.

Michael Emery argued in his trial brief that the Union/Wurzell Restrictions

"reserved a valid and enforceable reversionary interest (called a 'right of re-entry' or

'power of termination') in the grantors" and their successors and assigns. He specifically

took the position that the Union/Wurzell Restrictions did not create restrictive covenants

or equitable servitudes because those concepts leave no reversionary interest in the

grantor and thus the grantor could not regain title upon a breach.

In 1977, the trial court entered judgment, concluding the Union/Wurzell

Restrictions were valid and enforceable conditions subsequent. The trial court found the

conditions subsequent "reserved in the Grantors, their heirs, successors and assigns, a

reversionary interest ('right of re-entry')," which was now held by Michael Emery.

The Current Action

In 2011, Syverson sued Appellants and the other owners of the southern lots for

declaratory relief to invalidate the Use Restrictions. In his original complaint, Syverson

stated that "[d]uring the course of the purchase of [his] [p]roperty, [he] became aware of

a grant deed recorded on August 26, 1949, which transferred the [p]roperty from Evelyn

Rose Wurzell to Betty Rotner." That grant deed contained the Union/Wurzell

Restrictions. Syverson subsequently amended his complaint multiple times. In the

operative second amended complaint, Syverson asserted causes of action for declaratory

relief and to quiet title. He alleged that to the extent the court construed the Use

Restrictions as conditions subsequent with right of reverter, they were invalid, void and 4 unenforceable under the Act, and enforcement of the Use Restrictions was unjust,

oppressive and inequitable.

Kuhn cross-complained against Syverson, alleging Syverson planted a row of

cypress trees along the border of Syverson's and Kuhn's properties, which partially

obstructed Kuhn's view of Mission Bay. Kuhn also sought declaratory relief regarding

utility and sewer easements over Syverson's property. The Emerys were not parties to the

cross-complaint.

In May 2013, Syverson moved for summary adjudication on each cause of action

in the second amended complaint. He argued that because the judgment in the Prior

Action concluded the Use Restrictions were conditions subsequent with right of reverter,

the Use Restrictions expired under the Act due to Appellants undisputed failure to record

a notice of intent to preserve their interest. Syverson also asserted that he was unaware of

the Use Restrictions until after he purchased his property.

Appellants opposed summary adjudication, arguing the Use Restrictions were

enforceable as an equitable servitude and thus a notice of intent to preserve their interest

was not required under the Act. Appellants also argued that although the Use

Restrictions were not technically drafted as an equitable servitude, they could

alternatively be enforced as such because Syverson purchased his property with actual or

constructive notice of the restrictions. Appellants contended Syverson had constructive

notice based on the undisputed fact that the deeds containing the Use Restrictions were

recorded before Syverson purchased his property. To support their argument concerning

Syverson's actual notice, Appellants pointed to the statement in his original complaint

5 that he became aware of the 1949 deed from Wurzell to Rotner "during the course of the

purchase" of his property.

The trial court granted summary adjudication in favor of Syverson, finding the

Use Restrictions were unenforceable. The court concluded that the Use Restrictions

expired as a result of Appellants' failure to record a notice of intent to preserve their

interest as required under the Act. The court further found that the Use Restrictions could

not be enforced as an equitable servitude because they expired before Syverson

purchased his property due to the passage of time and lack of recording of a notice of

intent under the Act, and Syverson denied knowing of the restrictions. The court

concluded that Syverson's statement in his original complaint that he became aware of the

Union/Wurzell Restrictions during the course of his purchase was insufficient to create a

triable issue of fact regarding notice. Lastly, the court found that Appellants were

collaterally estopped from claiming their interest constituted an equitable servitude

because they argued the opposite in the Prior Action.

DISCUSSION

I. Appealability

Appellants' notice of appeal indicates their appeal was taken from a judgment after

an order granting summary adjudication and a subsequent stipulation. Based on the

stipulation, the judgment dismissed Kuhn's cross-claim for private nuisance without

prejudice pursuant to the terms of the parties' settlement agreement. That settlement

agreement provided that if Appellants prevail on their appeal, and "the matter is sent back

to the trial court for trial, the Judgment shall be of no force and effect and is voided."

6 The Court previously asked Appellants to submit letters explaining why this

appeal should not be dismissed on the ground the appealed judgment was not yet final

due to Kuhn's dismissed yet unresolved cross-claim for private nuisance. After

considering the parties' responses, the Court concluded the appeal could proceed as to the

Emerys because they were not parties to the cross-complaint and the judgment was final

as to them. As to Kuhn, the Court deferred consideration of his request to treat his appeal

as a petition for writ review. We now consider that issue.

Kuhn argues that his claim for private nuisance was collateral to the main issue in

the case of whether the Use Restrictions are enforceable. He claims the summary

adjudication in favor of Syverson "substantially mooted" his private nuisance claim

because "the proposed second story addition to . . . Syverson's property would have the

same practical impact as a ten foot hedge adjacent to . . . Kuhn's property." Kuhn also

contends he was aggrieved by the summary adjudication order and would potentially be

bound by the outcome of the Emerys' appeal.

Resolution of the Emerys' appeal will necessarily impact Kuhn as the same facts

and issues are involved. Moreover, judicial economy would not be served by deciding

the matters of these Appellants separately. Accordingly, we exercise our discretion to

treat Kuhn's appeal as a petition for writ review and resolve Appellants' claims in a single

proceeding. (See Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 710, fn. 1.)

II. Standard of Review

In evaluating the propriety of a grant of summary judgment our review is de novo,

and we independently review the record before the trial court. (Branco v. Kearny Moto

Park, Inc. (1995) 37 Cal.App.4th 184, 189 (Branco).) In practical effect, we assume the 7 role of a trial court and apply the same rules and standards that govern a trial court's

determination of a motion for summary judgment. (Lopez v. University Partners (1997)

54 Cal.App.4th 1117, 1121-1122.)

" 'A trial court properly grants summary judgment where no triable issue of

material fact exists and the moving party is entitled to judgment as a matter of law.' "

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250.) Because the

granting of a summary judgment motion "involves pure questions of law, we are required

to reassess the legal significance and effect of the papers presented by the parties in

connection with the motion." (Ranchwood Communities Limited Partnership v. Jim Beat

Construction Co. (1996) 49 Cal.App.4th 1397, 1408.) We strictly construe the evidence

of the moving party and liberally construe that of the opponent, "and any doubts as to the

propriety of granting the motion should be resolved in favor of the party opposing the

motion." (Branco, supra, 37 Cal.App.4th at p. 189.)

The law of summary judgment provides courts with a mechanism to cut through

the parties' pleadings to determine whether trial is in fact necessary to resolve their

dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "If summary

judgment was properly granted on any ground, we must affirm regardless of whether the

court's reasoning was correct." (Jackson v. Ryder Truck Rental, Inc. (1993) 16

Cal.App.4th 1830, 1836.)

III. Marketable Record Title

A. The Act

In 1982, the Legislature passed the Act, which was a comprehensive statutory

scheme "to simplify and facilitate real property title transactions in furtherance of public 8 policy by enabling persons to rely on record title." (Civ. Code, § 880.020, subd. (b).)

The Legislature declared that "real property is a basic resource of the people of the state

and should be made freely alienable and marketable." (§ 880.020, subd. (a)(1).)

"Interests in real property and defects in title created at remote times, whether or not of

record, often constitute unreasonable restraints on alienation and marketability of real

property because the interests are no longer valid or have been abandoned or otherwise

become obsolete." (§ 880.020, subd. (a)(2).)

As part of the statutory scheme, the Legislature abolished fees simple

determinable and possibilities of reverter. (§ 885.020.) "Every estate that would be at

common law a fee simple determinable is deemed to be a fee simple subject to a

restriction in the form of a condition subsequent. Every interest that would be at common

law a possibility of reverter is deemed to be and is enforceable as a power of

termination." (Ibid.) As a result, a person entitled to take advantage of a breach of

condition does not have an immediate right to the property; instead, "the grantee's estate

does not terminate unless the power [of termination] is exercised in a timely manner by

the person holding the power." (3 Miller & Starr, Cal. Real Estate (3d ed. 2011) Estates;

Restraints; Perpetuities, § 9:5, pp. 9-12; see also § 885.010 [defining "power of

termination"].)

"To achieve [the public policy] goals, the Legislature adopted a recordation

requirement for certain types of interests, including powers of termination. (§ 885.010 et

seq.) Failure to record interests within a given period of time results in expiration of the

interest. These times for expiration 'are absolute and apply notwithstanding any disability

or lack of knowledge of any person. . . .' (§ 880.250, subd. (a).)" (Walton v. City of Red 9 Bluff (1991) 2 Cal.App.4th 117, 128 (Walton).) " 'The recordation provisions of the [A]ct

provide for a simple and easy method by which the owner of an existing old interest may

preserve it. If he fails to take the step of filing the notice as provided, he has only himself

to blame if his interest is extinguished.' " (Severns v. Union Pacific Railroad Co. (2002)

101 Cal.App.4th 1209, 1227 (Severns).)

"An interest may be preserved by the timely recordation of a notice of intent to

preserve the interest and these notices may be given consecutively: Perpetuity of interest

is not prohibited. [Citation.] Any person who claims an interest may record the notice, a

form of which is provided in the statute. (§§ 880.320, 880.340.) [¶] . . . A power of

termination expires at the later of: (1) 30 years after recordation of the instrument

evidencing the power, (2) 30 years after recordation of the last notice of intent to preserve

the power. (§ 885.030.)" (Walton, supra, 2 Cal.App.4th at p. 128, fn. omitted.) If the

period to record the notice expires before, on, or within five years after the operative date

of the statute, the period is extended until five years after the operative date. (§ 880.370.)

"When a future estate in real property is subject to a power of termination, the

power becomes unenforceable when it expires." (3 Miller & Starr, supra, § 9:8, p. 9-23.)

In that regard, section 885.060 provides:

"(a) Expiration of a power of termination pursuant to this chapter makes the power unenforceable and is equivalent for all purposes to a termination of the power of record and a quitclaim of the power to the owner of the fee simple estate, and execution and recording of a termination and quitclaim is not necessary to terminate or evidence the termination of the power.

"(b) Expiration of a power of termination pursuant to this chapter terminates the restriction to which the fee simple estate is subject and makes the restriction unenforceable by any other means, including, but not limited to, injunction and damages. 10 "(c) However, subdivision (b) does not apply to a restriction for which a power of termination has expired under this chapter if the restriction is also an equitable servitude alternatively enforceable by injunction. Such an equitable servitude shall remain enforceable by injunction and any other available remedies, but shall not be enforceable by a power of termination." (Italics added.)

B. Analysis

The Use Restrictions in this case were drafted in the form of conditions

subsequent with right of re-entry. Under the Act, the right of re-entry was transformed

into a power of termination. (§ 885.020.) In order to preserve the power of termination,

Appellants were required to record a notice of intent to preserve their interest.

(§ 880.350.) Generally, a notice of intent must be recorded within 30 years of the date

the instrument evidencing the power of termination was recorded or after the date a

notice of intent was recorded. (§§ 880.030, 885.030.) However, for interests that had

already expired or would expire within five years of the Act's effective date, January 1,

1983, the Act provides a five-year grace period. (§ 880.370; Cal. Const., art. IV, § 8,

subd. (c)(1); Severns, supra, 101 Cal.App.4th at p. 1220.)

The Union/Wurzell Restrictions are set forth in deeds recorded in 1949. The

Rotner Restrictions are set forth in a deed recorded in 1955. Thus, the 30-year recording

period expired in 1979 for the Union/Wurzell Restrictions and 1985 for the Rotner

Restrictions. Allowing for the Act's five-year grace period, Appellants were required to

record their notice of intent to preserve their interest in the Use Restrictions by 1988.

Appellants did not dispute that they failed to record a notice of intent under the Act to

preserve their interest in the Use Restrictions. They assert, however, that they were not

required to record a notice of intent to preserve their property interest because the Use

11 Restrictions were alternatively enforceable as an equitable servitude and thus fall within

the exception set forth in section 885.060, subdivision (c). Accordingly, we consider

whether the Use Restrictions were alternatively enforceable as an equitable servitude.

IV. Equitable Servitudes

A. General Principles of Equitable Servitudes

"Under the law of equitable servitudes, courts may enforce a promise about the use

of land even though the person who made the promise has transferred the land to another.

[Citation.] The underlying idea is that a landowner's promise to refrain from particular

conduct pertaining to land creates in the beneficiary of that promise 'an equitable interest

in the land of the promisor.' [Citations.] The doctrine is useful chiefly to enforce

uniform building restrictions under a general plan for an entire tract of land or for a

subdivision." (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361,

379 (Nahrstedt).) Although the doctrine of equitable servitudes is often invoked in cases

involving restrictions imposed pursuant to a general plan for improving an entire tract or

real estate subdivision, it is not limited to restrictions imposed in common interest

developments. (Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 378 (Marra).)

There are several requirements that must be met before a covenant will be

enforced as an equitable servitude. First, the covenant must be stated in a written

agreement. (Code Civ. Proc., § 1971; § 1624, subd. (a)(3); Citizens for Covenant

Compliance v. Anderson (1995) 12 Cal.4th 345, 358 (Citizens).) Second, the contracting

parties must have expressed their intent to bind their successors. (Citizens, at pp. 357-

358.) Third, the agreement must describe the property to be affected thereby. (Wing v.

Forest Lawn Cemetery Ass'n (1940) 15 Cal.2d 472, 483; Martin v. Ray (1946) 76 12 Cal.App.2d 471, 479.) Fourth, the covenantor's successor must have had actual or

constructive notice of the covenant at the time it acquired the covenantor's property.

(Citizens, at p. 363.) Finally, the equities must support the issuance of relief. (Marra,

supra, 15 Cal.2d at p. 378.)

B. Analysis

To support their equitable servitude argument, Appellants primarily rely on

MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693

(MacDonald). In that case, a prior owner of a golf course conveyed a strip of land along

its sixth fairway to the predecessor of an adjacent land owner. (Id. at p. 696.) The

property served as a rough for the sixth fairway and golf balls fell on it every day. (Ibid.)

Thus, to prevent interference with the property's use for golfing purposes, the deed of

conveyance contained building restrictions. (Id. at p. 696.) The plaintiffs argued the

deed restrictions were not enforceable against subsequent purchasers because the original

deed did not describe the benefited property. (Id. at p. 699.) Recognizing the argument

was technically correct, the court nevertheless held that deed restrictions drafted as

conditions subsequent with right of reentry "may be enforced . . . as equitable servitudes

against transferees acquiring the property with actual or constructive notice of the

restrictions, when failure to enforce the restrictions would produce an inequitable result."

(Id. at pp. 699-700.)

Notably, McDonald differs in a significant respect in that it did not involve a

power of termination and the Act as the Act did not exist at the time the court decided the

case. Regardless, Appellants argue that based on MacDonald, the Use Restrictions were

enforceable as an equitable servitude so long as Syverson had actual or constructive 13 notice of the restrictions, they were assigns of a grantor, and Syverson could not show

enforcement would produce an inequitable result.

Appellants are correct in that notice is an essential requirement for an equitable

servitude. (Citizens, supra, 12 Cal.4th at p. 365-366; McDonald, supra, 72 Cal.App.3d

at p. 699-700.) They claim Syverson had constructive notice based on the recorded deed

restrictions and a triable issue of fact existed as to actual notice because Syverson stated

in his original complaint that he learned of the grant deed containing the Use Restrictions

during the course of the purchase of his property.

Appellants' argument that Syverson had notice of the Use Restrictions, which is

based solely on the deeds containing the restrictions, is flawed because the Use

Restrictions expired in 1988. In general, "[a] 'duly recorded' document gives constructive

notice unless the interests described in the recorded document are released, discharged, or

conveyed to the property owner by another recorded document. It remains in the public

records, and imparts constructive notice, even though it may be unenforceable." (5

Miller & Starr, Cal. Real Estate (3d ed. 2011) Recording and Priorities, § 11:67, p. 11-

121.) However, an exception exists where the interest expired by statute. (Id. at § 11:67,

pp. 11-121 to 11-122.) Under the Act, "certain interests reflected by a recorded

document become unenforceable and no longer impart constructive notice after the

passage of certain prescribed periods of time." (Id. at § 11:68, p. 11-213.)

As relevant here, the Act provides that the "[e]xpiration of a power of

termination . . . makes the power unenforceable and is equivalent for all purposes to a

termination of the power of record and a quitclaim of the power to the owner of the fee

simple estate, and execution and recording of a termination and quitclaim is not 14 necessary to terminate or evidence the termination of the power." (§ 885.060, subd. (a),

italics added.) Thus, once Appellants' power of termination expired in 1988, it resulted in

a termination of the power of record and quitclaim of the interest to Syverson. As such,

recordation of the Use Restrictions no longer imparted constructive notice after

expiration of the power of termination as provided under the Act.

Similarly, even if Syverson had actual notice of the deeds containing the Use

Restrictions, he only had notice that his chain of title included expired Use Restrictions.

In the event that the deeds triggered a duty of inquiry to determine the validity of the

restrictions, such duty only extended to what he could have discovered based on a

reasonable investigation. (See Walgren v. Dolan (1990) 226 Cal.App.3d 572, 579;

American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1020.)

Assuming without deciding that a reasonable investigation included uncovering the Prior

Action, Syverson would have learned that the trial court had previously concluded the

Use Restrictions constituted conditions subsequent with a right of re-entry, which

subsequently became a power of termination under the Act and required recordation of a

notice to preserve the interest. Syverson would have further learned that Michael Emery,

the defendant in the Prior Action, expressly argued that the Use Restrictions were not

restrictive covenants or equitable servitudes. Indeed, Michael Emery had argued the

deeds could not "reasonably be construed as creating covenants or servitudes."

Accordingly, an investigation would have reinforced that the Use Restrictions constituted

a power of termination under the Act requiring a notice of intent to preserve the interest

and would not have put Syverson on notice of an interest based on an equitable servitude.

15 The parties have not pointed to anything in the record of title, other than the deeds

containing the expired Use Restrictions, that would have put Syverson on constructive

notice of Appellants' claimed interest in Syverson's property. Likewise, Appellants have

not shown or argued that Syverson had actual notice prior to his purchase based on

anything other than the deeds containing the expired Use Restrictions.

We recognize that the notice requirement is somewhat circular in that the analysis

leads us back to the expiration of the Use Restrictions under the Act. We also

acknowledge that we should not construe a statute to render any provision therein useless.

(Williams v. Superior Court (1993) 5 Cal.4th 337, 354.) Thus, we must consider whether

our conclusion that Syverson's lack of notice despite the recorded deeds in his chain of

title was fatal to Appellants' claim of an equitable servitude renders subdivision (c) of

section 885.060 meaningless. Based on our review of the legislative history, we conclude

it does not.

The Legislature added subdivision (c) to section 885.060 in 1990. (Stats. 1990, c.

1114 (A.B. 3220), § 1.) The purpose of adding that subdivision was "to prevent [section

885.060] from being applied to nullify property restrictions in the covenants, conditions,

and restrictions (CCRs) of numerous homeowner associations." (Sen. Com. on Judiciary,

Analysis of Sen. Bill No. 3220 (1989-1990 Reg. Sess.) as amended May 15, 1990

(Judiciary Committee Report).) The Judiciary Committee Report explained that a

homeowners association sponsored the bill because hundreds of homeowners

associations had failed to record notices of intent to preserve their interests in their CCRs

and, as a result, lost their ability to enforce their CCRs. (Ibid.) Thus, proponents of the

bill sought to "reaffirm the right of homeowner associations to continue to enforce 16 reasonable CCR restrictions by deeming the restrictions as equitable servitudes rather

than as a condition giving rise to a power of termination." (Ibid.)

In the case of homeowners associations, the Legislature chose equitable servitude

law as the standard for enforcing CCRs. (Nahrstedt, supra, 8 Cal.4th at p. 380.) Section

885.060, as originally enacted, "removed the ability of homeowners associations to

enforce longstanding . . . [CCRs] unless the association affirmatively preserved its

interest." (Judiciary Committee Report, supra.) By adding subdivision (c) to section

885.060, the Legislature rectified the problem and reinforced the ability of homeowners

associations to enforce their CCRs without a notice of intent to preserve their interest

therein. Nothing in our analysis of this case changes that solution or result. Although

not necessarily limited to the context of homeowners associations' CCRs, we see nothing

in the legislative history suggesting that subdivision (c) applies to situations as in this

case where landowners are attempting to escape the requirements of the Act by seeking to

alternatively enforce deed restrictions as equitable servitudes.

In any event, even if the notice requirement was not fatal to Appellants' claim of

an equitable servitude, the Use Restrictions do not meet other requirements of equitable

servitudes.

In order to establish an equitable servitude, the deed containing the restrictions

must contain "a proper expression of intent to create an equitable [servitude]; that is,

reference to a common plan of restriction or indication of an agreement between the

grantor and grantee that the conveyed lot to be taken subject to some such plan, but

also . . . 'some designation or description of what is an essential factor, namely, the

dominant tenement.' " (Wing v. Forest Lawn Cemetery Ass'n, supra, 15 Cal.2d at p. 480.) 17 " 'There should be some written evidence, either in the form of a plat [or] otherwise,

delineating or pointing out the extent of the property affected by the restrictions.' " (Ibid.)

" '[P]rovisions of an instrument creating or claimed to create such a servitude will be

strictly construed, any doubt being resolved in favor of free use of the land.' " (Friesen v.

City of Glendale (1930) 209 Cal. 524, 529.)

In this case, the Union/Wurzell Restrictions neither described the dominant

tenement nor stated that the restrictions were for the benefit of other parcels pursuant to a

common plan. To the contrary, the Union/Wurzell Restrictions stated they were

"operative as covenants running only with the land covered by each separate and

particular lot of parcel hereby demised, but shall not inure to the benefit or detriment of

any owner or owners of adjoining or adjacent lots, lands, or parcels in anywise or

manner whatsoever." (Italics added.) Similarly, the Rotner Restrictions did not identify

a dominant tenement and common plan.

If we were to accept Appellants' argument that the Use Restrictions are

alternatively enforceable as equitable servitudes, we would run afoul of the purpose of

the Act. The Legislature enacted the Act to clear "interests in property and defects in

titles created at remote times, whether or not of record" because such interests and defects

"constitute unreasonable restraints on alienation and marketability of real property," often

resulting in delays and litigation to clear titles. (§ 880.020, subd. (a)(2)-(3).) The

Legislature declared that "titles should be determinable to the extent practicable from an

examination of recent records only." (§ 880.020, subd. (a)(4).) "The burden on holders

of old interests of recording a notice of intent to preserve or an extension of time is

outweighed by the public good of more secure land transactions." (Cal. Law Revision 18 Com. com., 7 West's Ann. Civ. Code (2007 ed.) foll. § 880.020, p. 422.) If landowners

who allowed their interest to lapse, such as Appellants in this case, could run to court to

seek an injunction to alternatively enforce the interest as an equitable servitude, it would

render the Act's purpose nugatory. Instead, we conclude the exception set forth in

subdivision (c) of section 885.060 only applies to restrictions which comply with the

requirements of equitable servitudes and is not a savings clause for landowners who

through inadvertence, neglect, or otherwise allowed their power to termination to expire.

Because the Use Restrictions expired based on Appellants' failure to record a

notice of intent to preserve their interest and Appellants failed to show a triable issue of

fact exists as to whether the Use Restrictions are equitable servitudes, the trial court

properly granted summary adjudication in Syverson's favor.

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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