In 1970, the California Supreme Court held that private owners of coastal property could be deemed to have impliedly dedicated property rights to the public if they allowed the public to use their property for recreational purposes over a period of years.  The reaction to this decision was negative, as it encouraged exclusive use of property and penalized neighborly landowners who allowed public use with the potential loss of exclusive rights to their land.  The only ways to prevent the possibility of such implied dedication were (1) block access to your property altogether, (2) find a way to convey your express written permission for the public to use your property,  (3) post a sign[1], or (4) publish a notice[2] in a local newspaper  granting the public a license to use the land.

In response to that decision, the California legislature passed Civil Code Section 1009, which became effective in 1972.  Section 1009 states that “regardless of whether or not a private owner of real property has recorded a notice of consent to use of any particular property . . . or has posted signs on such property . . ., no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use…” (Subd. (b), emphasis added).  Section 1009 contained various other provisions and exemptions and, importantly, contained many references to public recreational use of land as opposed to non-recreational use.  Unfortunately, the application of Section 1009 by the courts has been inconsistent since its enactment.

Fast forward to present day. Topanga Canyon landowners Scher and McAllister enjoyed accessing their respective non-coastal property by driving on two roadways that cross their neighbor’s land, rather than taking another less convenient route.  Their neighbors caught wind of their unauthorized use of the roads and put up a gate to stop their access.  In response, rather than use the less convenient route, Scher and McAllister sued, arguing that their neighbors had “acquiesced” to their use for more than five years and, thus, impliedly dedicated the two roads for their vehicular access.

Scher and McAllister claimed that the protection against implied dedication in Civil Code Section 1009(b), quoted above, did not apply to property used by the public for non-recreational vehicle access.  They argued the intent of Section 1009 was to encourage landowners to make their property available for recreational use only.

The California Supreme Court disagreed,[3] finding there was no such restriction in the statute and  Section 1009(b) does bar implied dedication based solely on non-recreational use of property.   The Supreme Court stuck to the plain language of the statute and rejected the attempt to eat away at private property rights in favor of public use.

In our coastal area, it is important to note that coastal property that lies within 1,000 yards of the mean high tide line is not protected by Section 1009(b).  To protect publicly accessible coastal property from implied public dedication one must continue to post a sign, publish a statement of permission annually, record a notice or enter into an agreement with a federal, state or local agency.[4]    Note that to have full legal effect, posted signs must comply with Civil Code Section 1008 and be posted at each entrance to your property, or at intervals of not more than 200 feet along its boundary. Such signage must read: “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.”

If you have any questions about this case or its potential impacts on your property rights or property access rights, please feel free to contact me or the BFAS attorney with whom you regularly work.

 

 

Olivia K. Marr, Attorney

omarr@bfaslaw.com

(805) 966-7000

www.BFASLaw.com

 

 

 

DISCLAIMER:  This Advisor is one of a series of business, real estate, employment, estate planning and tax bulletins prepared by the attorneys at Buynak, Fauver, Archbald & Spray, LLP. This Advisor is not exhaustive, nor is it legal advice. You should discuss your particular situation with us or with your own attorney. Our legal representation is only undertaken through a written engagement letter and not by the distribution or use of this Advisor.

[1] Cal. Civ. Code Section 1008

[2] Cal. Civ. Code Section 813

[3] Scher v. Burke (June 15, 2017)  S230104

[4] Cal. Civil Code Section 1009(f)