Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the Nov. 6, 2014 mailing of "Constructive Notice":

Easements Hidden in Permits

The California Court of Appeal decision in Bowman v. California Coastal Commission, 2d Civil No. B243015 (Cal. App., 2nd App. Dist., Div. 6, October 23, 2014) has been getting its fair share of attention for its takings analysis (Nollan/Dolan) as well as its procedural jurisprudence (collateral estoppel). It should also bend the antennae of land title lawyers and title insurers.

The underlying facts in Bowman concerned a shoreline access easement condition in a coastal development permit granted by the California Coastal Commission. The CCC had determined (and continued to argue in the Court of Appeal) that “a party who fails to challenge the validity of a permit condition and accepts the benefit of the permit has acquiesced in the permit and is bound by its conditions.” The Court agreed this was the law, but held it did not control in this instance. Since the proposed improvements weren’t commenced pursuant to the CCC permit and the permit lapsed, the owner hadn’t acquiesced in the easement condition.

Of course, this result begs the questions: had work been commenced under the permit, would the easement condition have been deemed accepted? Would a public access easement have been imposed upon a one-mile-long stretch of otherwise private shoreline without notice in the public land records?


The defense and indemnity risks associated with such individualized regulatory “easements” are considerable. Nor is this a one-time occurrence. The creation of “easements” by administrative action is not limited to California or to easements in favor of the public. A year ago, the Alaska Supreme Court invalidated access permits to a state recreation area that allowed the only reasonable overland access to certain remote private properties. That Court determined the permits created “easements” which were invalid disposals of public parkland. SOP, Inc. v. State Dept. of Natural Resources, 310 P.3d 962 (Sup. Ct. Alaska, 2013).