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Court of Appeal, Second District, Division 4, California.

Alan KLEINMAN, Plaintiff and Respondent, v. CHRISTIANS COMMUNITY CHURCH, Defendant and Appellant.

No. B063504.

Decided: April 14, 1994

David S. Cunningham for Defendant and Appellant. Steven R. Friedman for Plaintiff and Respondent.

Christians Community Church (the Church) appeals from a judgment in favor of Alan Kleinman enforcing an easement appurtenant for transient parking on property owned by the Church at 87th and Broadway in Los Angeles. The Church argues that the agreement (the Agreement) creating Dr. Kleinman's interest created a revocable license rather than an easement. It also argues that a later assignment of parking rights to Dr. Kleinman is invalid. Dr. Kleinman failed to make the monthly parking fee payments required by the Agreement. Based on that omission, the Church argues that the trial court erred in failing to find that Dr. Kleinman had forfeited the Agreement; that Dr. Kleinman is not entitled to specific performance because he breached the Agreement. On that basis and others, the Church also argues that the trial court misapplied the law regarding abandonment of an easement.

We conclude that the trial court properly construed the instrument at issue as creating an easement rather than a license. While there was evidence of nonuse of the parking for a period of years, this evidence did not compel the trial court to conclude, as a matter of law, that a forfeiture, abandonment, or termination of Dr. Kleinman's parking rights had occurred. It was established that Dr. Kleinman failed to pay the fees required by the Agreement, but Agreement specified the steps required to terminate his rights on that ground. Those steps were not taken. In light of our conclusions, we do not reach the merits of appellant's arguments concerning the later assignment of parking rights to respondent.


In 1945, Broadman Improvement Company, a corporation (Broadman), entered into a written agreement (the Agreement) with Aline March, Hobart Henley and Dorothy March Henley (March & Henley). It is this instrument which created the rights at issue in this appeal. At the time, Broadman owned Lots 10, 11, 12, 25, 26 and 27 of the Allen Tract in the City of Los Angeles, near Broadway between 87th and 88th Streets. March & Henley owned portions of Lots 3, 4, 5 and 27 of the Allen Tract. Broadman was the predecessor in interest of the Church, while March & Henley was respondent's predecessor in interest. March & Henley's lots were part of a strip of commercial lots between 87th and 88th streets facing eastward onto Broadway. Behind these storefronts, to the west, was a large parking lot located on lots 11, 12, 25, 26, and portions of lots 10 and 27.

The Agreement expressly describes the lots owned by both Broadman and March & Henley. Paragraph 4 provides: “Broadman hereby grants to March & Henley, for the term hereof, a non-exclusive license for the use of said parking lot for transient parking. Transient parking is hereby defined as parking of motor vehicles or other conveyances by owners, tenants and other lawful occupants, customers and visitors of and to the March–Henley property for such periods of time as may reasonably be necessary in connection with visits to said March–Henley property. March & Henley's use of the parking lot shall be in common with a like use of said parking lot by present and future owners and tenants of property in the block between 87th and 88th Streets on the west side of South Broadway, Los Angeles and by their customers and other invitees.” The Agreement was for an initial 10–year period, with an option to March St Henley to extend the agreement for 10–year periods through June 30, 2035. It includes an automatic renewal clause, unless March & Henley gives Broadman written notice 30 days before the expiration of the term.

The Agreement expressly contemplates the assignment of March St Henley's parking rights. Paragraph 16 states: “This agreement shall bind and inure to the benefit of the heirs, personal representatives, successors and assigns of each of the parties hereto.” In addition, in the event March St Henley sold all or a portion of their property, paragraphs 8 and 10 provide a formula for the calculation of the rights and responsibilities of their successors under the agreement. Broadman reserved the operation and management of the parking lot, and March & Henley agreed to pay $30 per month. March St Henley was given the right to terminate in three separate clauses of the Agreement. In paragraph 4, March & Henley was given the right to terminate the Agreement if it became unlawful to use the parking lot for parking in the future. Paragraph 5 gave March & Henley the right to terminate the agreement by written notice at the end of each 10–year period. Paragraph 9 gave March & Henley the option, on 10 days notice, to be released from the terms of the Agreement on payment of $1,800.

In the event of default, all parties to the agreement were given a right to terminate: “ll. In the event of default by either party in the performance of any of their respective covenants hereunder and the continuance of such default for thirty (30) days after written notice from the other party, specifying the nature thereof, the other party shall have the right to terminate this agreement by written notice. Such right of termination shall be in addition to any rights provided by law. No waiver by either party of breach of any covenant hereof shall be construed as a waiver of any preceding or succeeding breach of the same or of any other covenants or condition hereof.”

The Agreement was recorded on August 23, 1945. Respondent called Daniel E. Riordan, the former vice-president and chief advisory title officer for Chicago Title Insurance Company, as an expert witness on title matters. Mr. Riordan, who had 34 years experience in the title business, conducted a title search on the property owned by the Church and the property owned by respondent. He found the Agreement recorded against both properties. He found no agreement terminating or altering the Agreement in the chain of title to either property. Mr. Riordan examined exhibit 52, a title report issued to the Church for its purchase of the property at issue here. He found the Agreement noted as an exclusion to the title insurance, listed as “a non-exclusive license agreement,” item number 11 to Schedule B.

Dr. Kleinman purchased the March & Henley property (lots 3, 4, and portions of 5 and 27) on October 10, 1978 from Dorothy Henley, who by virtue of marriage, was Dorothy Henley Shane at the time.1 At the time, the parking lot was owned by the Association for Retarded Citizens, which had purchased the property in 1979. The Association sold the parking lot and lots 6, 7 and a portion of 5 in the strip of commercial property facing on Broadway, to the Church in 1982. Despite the fact that the Agreement was recorded in the chain of title to both the March & Henley property and the parking lot, Dr. Kleinman testified that he was unaware of the Agreement until after the Church erected a fence around the parking lot, allowing only church members to use it. He believed that this occurred in 1986. At that point, Dr. Kleinman consulted his attorney.

Dr. Will T. Washington, pastor and president of the Christians Community Church corporation, testified that he had actual notice of the Agreement from the title insurance policy. He discussed the Agreement with Inocencio Bacayo, controller for the Association of Retarded Citizens. Mr. Bacayo told Pastor Washington that no payment had been received pursuant to the Agreement, and, therefore, the Agreement was no longer valid. The Church relied on this representation. It erected a fence around the parking lot in November 1985.

The Association of Retarded Citizens never made demand on Dr. Kleinman for payment of the $30 monthly fee under the Agreement. The Church never attempted to collect the monthly fee from Dr. Kleinman, sent any notice of default, or made any other effort to terminate the Agreement prior to trial. Dr. Kleinman never made any payment.

Dr. Kleinman obtained an assignment of parking rights from Dorothy Henley Shane on July 14, 1987, which purported to become effective as of November 15, 1978. When the Church did not agree to allow use of the parking lot, Dr. Kleinman filed an action on October 29, 1987 to quiet title and enforce his right to use of the parking lot. The first amended complaint alleged 12 causes of action to quiet title, for declaratory and injunctive relief, damages, specific performance, business torts, and breach of contract, breach of lease, and negligence. The Church filed a general denial, alleging no affirmative defenses.

At the court trial the issues were narrowed to the causes of action for quiet title, declaratory and injunctive relief, specific performance, breach of lease, breach of irrevocable license and breach of contract. Respondent in effect dismissed his prayer for damages, seeking only costs and attorneys' fees. Following the testimony, the trial court issued an oral statement of decision, which was modified after an opportunity for objections by the parties. The trial court filed its formal statement of decision and entered a judgment in favor of respondent. It expressly found that the Agreement created an easement appurtenant for parking. It also concluded that the easement had not been terminated, rescinded, nor extinguished pursuant to Civil Code section 811. Based on these findings, the trial court concluded that Dr. Kleinman had an enforceable easement appurtenant, which could not be abandoned by nonuse alone. The trial court found no evidence that Dr. Kleinman had ever intentionally abandoned the easement. Finding no evidence of unclean hands or any wrongdoing by respondent, the trial court granted specific performance and injunctive relief, directing the Church to allow respondent, his tenants, and their customers, to use the lot during business hours. Respondent was also awarded costs and reasonable attorneys' fees pursuant to paragraph 12 of the Agreement. The Church filed a timely notice of appeal.


IThe Agreement

The central issue in the case is the construction of the Agreement. The Church bases its argument that the Agreement granted is a revocable license on language in the Agreement describing the right given as a license. Respondent argues that the Agreement grants an easement appurtenant, based on other clauses which make it binding on successors in interest and which give him the right to terminate the agreement under the specified conditions which we have discussed. We agree with respondent, as we shall explain.

The parties presented no extrinsic evidence of the intent of their predecessors in interest. In the absence of conflicting extrinsic evidence, the interpretation of the document is a question of law, and subject to our independent interpretation. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865–866; Wu v. Interstate Consolidated Industries (1991) 226 Cal.App.3d 1511, 1515.)

We apply the rules for interpretation of deeds to the interpretation of the instrument at issue in this case. (See Moylan v. Dykes (1986) 181 Cal.App.3d 561, 569.) Under California law, the general rules of contract interpretation are applied to the interpretation of deeds. (Civ.Code, § 1066; Willard v. First Church of Christ, Scientist (1972) 7 Cal.3d 473, 477; Moylan v. Dykes, supra, 181 Cal.App.3d at p. 569.) We are guided in our interpretation by the Civil Code.2 Section 163 6 provides: “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” Section 1639 directs us to rely upon the language of the contract: “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; ․” We may not rely on a single clause of the contract in ascertaining the intent of the parties, but must look to the contract as a whole, giving effect to every part, if practicable. (§ 1641.)

“[A]n easement conveys rights in or over the land of another. ‘An easement involves primarily the privilege of doing a certain act on, or to the detriment of, another's property․’ [Citations.]” (Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 865, emphasis in original.) “The land to which the easement attaches is called the dominant tenement; the land to which the burden or servitude is imposed is called the servient tenement. [Citations.] [¶] Easements are classified as appurtenant or in gross. [Citations.] The basic effect of the distinction between easements appurtenant and easements in gross arises when the owner of an easement conveys his property. The conveyance of the dominant tenement transfers all appurtenant easements to the grantee, even though the easements are not specifically mentioned in the deed. [Citations.] An easement in gross, unlike an appurtenant easement, is merely a personal right to use the land of another. [Citation.] It does not pass with the land.” (Moylan v. Dykes, supra, 181 Cal.App.3d at p. 568.)

With these principles in mind, we turn to an examination of the Agreement. The Church's argument is based in large part on the first sentence of paragraph 4: “Broadman hereby grants to March & Henley, for the term hereof, a non-exclusive license for the use of said parking lot for transient parking.” The use of the term “license” is not dispositive, given the indiscriminate and interchangeable use of that term and the term “easement.” (See Fisher v. General Petroleum Corp. (1954) 123 Cal.App.2d 770, 776.)

The critical distinction between a license and an easement appurtenant is that a license is a personal right to the use of real property, which may not be conveyed or assigned. (Eastman v. Piper (1924) 68 Cal.App. 554, 560; 5 Miller & Starr, California Real Estate (2d ed. 1989) Easements § 15.2, p. 393.) The Agreement expressly binds the heirs, successors and assigns of the parties. The clear intent of original parties to the Agreement to bind any successors and assigns in this case is shown by paragraphs 8 and 10, which provide for the apportionment of the $30 monthly fee among future takers of a portion of the March & Henley interest. The near 100–year term of the Agreement is further evidence that the original signatories contemplated that it would bind their successors.

In addition, at the time the Agreement was executed, it was established under California law that a license could be revoked at any time at the will of the licensor. (County of Alameda v. Ross (1939) 32 Cal.App.2d 135, 143; see also Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 430.) As we have seen, the Agreement restricted the right of Broadman to terminate to circumstances constituting a default, while granting March & Henley the right to terminate at will upon the payment of $1,800. These provisions were inconsistent with the creation of a license.

The Church also argues that since the Agreement conveyed an interest which was not permanent, it is more consistent with a license than an easement. But an easement may be created for a term of years. (See Parr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895, 900.)

The Church cites an Illinois case, South Center Dept. Store v. South Pdy. Bldg. Corp. (1958) 19 Ill.App.2d 61, 153 N.E.2d 241, in support of its interpretation of the Agreement. In that matter, the court concluded that an agreement which granted “ ‘[t]he non-exclusive right to use the Lessor's parking lot adjacent to the demised premises for the benefit of the Lessee's officers, employees and customers without charge so long as said lot is operated by or for the Lessor for parking purposes” ’ created a license rather than a lease. (Id. at p. 242.) The case discusses the distinction between a licnese and a lease; it does not mention an easement. There also is no indication that the agreement in South Center expressly bound the successors and assigns of the signatories, as did the Agreement here. Finally, the parking agreement in that action was revocable at the will of the licensor. As we have seen, the Church could only terminate the Agreement upon compliance with the specific default provisions of paragraph 11, which we discuss below. The decision in South Center does not aid the Church's position.

We are satisfied that the Agreement created an easement appurtenant in favor of March & Henley for the transient parking on the lot now owned by the Church. The Church's interpretation of the Agreement is hypertechnical and inconsistent with the express intent of the executors. As the successor in interest to March St Henley, respondent may use the parking lot unless the Agreement has been terminated in some manner.


Forfeiture, Abandonment and Termination

As we have noted, Dr. Kleinman never paid the $30 monthly parking fee required by the Agreement prior to the instigation of this litigation. Based on that omission, the Church argues that he had forfeited his rights, and that the Agreement had been abandoned or terminated.

Appellant first argues that respondent has forfeited the right to enforce the easement, because he has not paid the $30 monthly fee. In this argument, appellant relies on statutory authority for the principle that payment of rent is a condition subsequent to the use of leased premises. As we have seen, the Agreement created an easement appurtenant, not a lease.

The evidence is uncontroverted that the Church did not comply with the provisions of the Agreement allowing termination because of continuing default pursuant to paragraph 11.3 Appellant argues that a letter of May 2, 1987 from its attorney to the attorney for respondent constitutes a “notice of non-compliance with essential conditions precedent․” The first paragraph of the letter identifies the writer, and states: “The church has asked me to inform your client that there is no basis in law or fact for his claim to the alleged parking rights.” The second paragraph challenges Dr. Kleinman's proof of ownership, and states that Dr. Kleinman had failed to provide proof of any payment for the parking rights as required. The next paragraph of the May 1987 letter asserts that the Agreement is no longer binding, that the “owners of the property referenced in your letter are not now, and for some time have not been, paying any license or lease payments for the alleged parking rights;” and that Dr. Kleinman had waived any right to parking privileges.

While this letter put Dr. Kleinman on notice that the monthly fees had not been paid, the Church took no further action to recover the amounts due. It failed to file the second written notice of default required by the terms of the Agreement after the default had continued 30 days beyond the initial written notice. In response to Dr. Kleinman's argument that the Church failed to comply with the default notice provisions of the Agreement, it cites only the first letter of Nay 1987. This omission distinguishes this case from Lincoln v. Narom Development Co. (1970) 10 Cal.App.3d 619, on which appellant relies. In that case, the party seeking to enforce conditions in an agreement which granted an easement, gave the required notice to the owner of the dominant tenement. In our case, it did not. Under the circumstances presented, we find no forfeiture of respondent's rights.

The Church's forfeiture argument is closely related to the issue of termination or abandonment of the easement. We agree with respondent that the easement could be terminated only by its express terms, or pursuant to section 811. The trial court correctly concluded that there was no evidence that the easement created by the Agreement had been terminated. As we have seen, the Agreement laid out a procedure for termination. The evidence was that neither the Church nor its predecessor, the Association for Retarded Citizens, had invoked that procedure as against respondent. Instead, both concluded, erroneously, that the Agreement was automatically voided by the failure of respondent to pay the monthly fee. They were mistaken because the terms of the Agreement required a continuing default after 30–day written notification of default before termination could be effected.

Appellant argues that the trial court improperly shifted the burden of proof on the issue of abandonment. In support of this argument, it contends that sections 887.010 et. seq., which codify the statutory scheme to establish the abandonment of easements, are not the exclusive method to extinguish an easement. A party seeking to quiet title to property burdened by an easement may bring an action pursuant to section 887.040 to establish abandonment of the easement. Appellant relies on section 887.030, which provides: “This chapter supplements and does not limit or otherwise affect the common law governing abandonment of an easement or any other procedure provided by statute or otherwise for clearing an abandoned easement from title to real property.” The Law Revision Commission Comment to section 887.030 states: “Section 887.030 makes clear that although this chapter prescribes a standard for determining that an easement has been abandoned, it is not intended to limit the common law of abandonment of easements. [Citations.]”

It follows that appellant is correct in contending that this statutory scheme is not exclusive. As we discuss below, however, the common law is that an abandonment may be established only on evidence of a clear intent to abandon by the benefited party. (See Gerhard v. Stephens (1968) 68 Cal.2d 864, 890–892.) There was no evidence that respondent intended to abandon the easement.

Section 811 provides four methods of extinguishing a servitude. The first two, vesting of the right to the servitude and the servient tenement in the same person, and the destruction of the servient tenement, do not apply in this case. The third statutory ground is an act by the owner of the servitude incompatible with the nature or exercise of the easement. The Church does not expressly rely on this statute, and the record contains no evidence that respondent took any action with respect to the parking lot.

The issue of whether there was conduct incompatible with the easement within the meaning of section 811, subdivision (3) is a question of fact. (See People v. Ocean Shore Railroad (1948) 32 Cal.2d 406, 417 [abandonment of railroad easement established where company stopped running trains, removed tracks, sold rails, rolling stock and equipment, and ceased status as public utility].) Our Supreme Court has established that an inconsistent act within the meaning of section 811 “must be material and permanent, as distinguished from something that is occasional and temporary.” (Id. at p. 418.) In McCarty v. Walton (1963) 212 Cal.App.2d 39, the plaintiffs benefitted from a right-of-way easement across the defendant's land to access their property. This route was also used by deliverymen and guests. Plaintiffs later constructed a stone wall along a portion of their property, after which the land was accessed by using a portion of the original right-of-way, then turning to reach a gate in the new wall. (Id., at p. 43.)

The McCarty court rejected the argument that the construction of the wall constituted an abandonment of the easement under section 811, subdivision (3), based on the fact that the plaintiffs left a wide gate in the wall. Leaving the gate was found inconsistent with an intent to abandon the easement. (212 Cal.App.2d at p. 45.)

The Church presented evidence that the parking lot was used only sporadically, that it was considered dangerous by members of the community because of criminal activity which took place there, and that the lot was in great disrepair when the Church purchased the property. Appellant makes much of Dr. Kleinman's failure to maintain or improve the parking lot. But Broadman reserved the obligation of maintaining and operating the lot in paragraph 6 of the Agreement so long as the monthly fees were paid. The Agreement was silent as to maintenance of the lot if the fees were delinquent.

Dr. Kleinman testified that he had seen his tenants use the lot and that “I had no question about being able to park there or not because you had always been able to park there. I mean, people had been parking there, as I said, before and after.” Dr. Kleinman testified that before the Church purchased the property, he never saw anybody charging for parking on the lot and that people appeared to park there at will. Mr. Thedo Jones testified that Dr. Kleinman gave him free storage space on lot 4 for building materials. Mr. Jones said that he used the parking lot to access his materials once or twice a week for two or three years, beginning in the period between 1978 and 1980. During that time, no one told him that he could not park in the lot. There was no substantial evidence that Dr. Kleinman engaged in any use incompatible with the parking easement.

The fourth statutory basis for extinguishment of a servitude is disuse. It applies only to easements by prescription, and not to easements created by express agreement. (§ 811, subd. 4: “When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.”)

It is established that abandonment of an easement acquired by grant under the common law is a question of fact which must be established by evidence of “ ‘a clear intent to abandon the easement .” ’ (Gerhard v. Stephens, supra, 68 Cal.2d at p. 891; see also Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, 1383.) The trial court's finding that there was no abandonment is supported by Dr. Kleinman's testimony that he believed he had a right to continued use of the parking lot until the time of trial. His failure to pay the $3 0 monthly fee does not establish a “clear intent” to abandon, in light of his belief in his right to continued use.

Finally, appellant argues that Dr. Kleinman is not entitled to specific performance of the Agreement because his failure to pay the $30 monthly fee constitutes a failure of consideration. We observe that no consideration is required to create an enforceable easement. (See Miller & Starr, Current Law of California Real Estate (2d ed. 1989) Easements, § 15:14, p. 435.) Appellant cites two cases in support of its argument, neither of which concern the enforcement of an easement. The first, Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575, concerned an agreement to give screen credits. The second, Henderson v. Fisher (1965) 236 Cal.App.2d 468, 473 arose from a personal services agreement. We conclude that appellant failed to pursue the nonpayment of the monthly fees in the appropriate manner. Having failed to do so, Dr. Kleinman's omission is not a basis to avoid the enforcement of the easement appurtenant for parking in this litigation.

In light of our conclusion that respondent has an enforceable easement appurtenant pursuant to the Agreement, we need not, and do not, address the arguments raised concerning the later assignment of parking rights executed by Dorothy Henley Shane after this dispute arose.


The judgment is affirmed. Respondent is to have his costs on appeal.


1.  On April 17, 1986, Dr. Kleinman conveyed the property to himself as trustee of the Alan N. Kleinman inter vivos trust.

FN2. All further statutory references are to the Civil Code unless otherwise indicated..  FN2. All further statutory references are to the Civil Code unless otherwise indicated.

3.  We do not address appellant's right to recover any monthly fee due. Appellant sought no affirmative relief below. Nothing in the trial court's judgment, which is intended to enforce the terms of the Agreement, prevents the Church from future action to enforce the payment provisions of the Agreement.


We concur: WOODS (Arleigh), P.J. and KLEIN (Brett), J.*