Self v. Sharafi

• Decision Date: 29 January 2014
• Docket Number: D061181
• Citation: 220 Cal.App.4th 483,163 Cal.Rptr.3d 71
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas William SELF et al., Plaintiffs, Cross-defendants and Respondents, v. Shahram SHARAFI et al., Defendants, Cross-Complainants and Appellants.

220 Cal.App.4th 483

163 Cal.Rptr.3d 71

Thomas William SELF et al., Plaintiffs, Cross-defendants and Respondents,

v.Shahram SHARAFI et al., Defendants, Cross-Complainants and Appellants.

D061181

Court of Appeal, Fourth District, Division 1, California.

Filed September 20, 2013

Review Denied January 29, 2014

See12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 431 et seq.

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Reversed with directions. (Super. Ct. No. 37–2010–00101291–CU–OR–CTL)

Dillon & Gerardi, Timothy P. Dillon and Sunjina Ahuja for Defendants, Cross-complainants and Appellants.

Boudreau Williams and Jon R. Williams for Plaintiffs, Cross-defendants and Respondents.

IRION, J.

Defendants and cross-complainants Shahram Sharafi and Fatemeh Falahat–Pisheh (the Sharafis) ¹ appeal from a judgment entered after the trial court granted summary judgment in favor of plaintiffs and cross-defendants Thomas William Self and Linda P. Self as co-trustees of the Thomas William Self and Linda P. Self Family Trust, executed May 10, 1995 (the Selfs) on the Selfs' first amended complaint for quiet title and declaratory relief and the Sharafis' cross-complaint for declaratory relief.

The first amended complaint and cross-complaint concern adjoining parcels of real property owned by the Selfs and the Sharafis, respectively. In granting the Selfs' motion for summary judgment, the court ruled that a building restriction contained in a 1946 deed, by which the prior common owner of the adjoining parcels conveyed the parcel the Sharafis now own and retained the parcel the Selfs now own, was a personal covenant that is not enforceable against the Selfs. The Sharafis contend the building restriction is enforceable as a covenant running with the land and as an equitable servitude. We conclude the building restriction is enforceable as a covenant running with the land under Civil Code ² section 1462 and, accordingly, reverse with directions to enter judgment in favor of the Sharafis.

IFACTUAL AND PROCEDURAL BACKGROUND

In 1945 Elizabeth Fleet purchased a parcel of real property described as “Lot 4 in Block ‘I’ of the Resubdivision of a portion of Villa Tract, La Jolla Park, in the City of San Diego.” In November 1946, Fleet conveyed a portion of Lot 4 to Jay M. and Nita Donovan by a grant deed, which provided that she was conveying “[a]ll of Lot 4 EXCEPTING the following described property in Block ‘I’ ...:” The deed then set forth the legal description of the portion of Lot 4 that Fleet retained.³ Under the heading “Restriction[,]” the deed stated: “A consideration of this sale is that no buildings will be erected now or at any future date on the [property retained].”

In 1989, the Selfs purchased from successors in interest of Fleet the portion of Lot 4 that Fleet retained as well as some adjacent property. Although the grant deed conveying the Lot 4 property to the Selfs does not refer to the building restriction, the Selfs were made aware of the restriction before they purchased the property.⁴ The Selfs later transferred the property to their family trust. In October 2010, the Sharafis obtained title to the portion of Lot 4 that Fleet sold to the Donovans, and an adjoining lot.

In January 2011, the Selfs filed a verified first amended complaint against the Sharafis for quiet title and declaratory relief, seeking an adjudication that they held title to their Lot 4 property free of the building restriction contained in the 1946 grant deed and that the building restriction is invalid and unenforceable. In March 2011, the Sharafis filed a cross-complaint for declaratory relief, seeking an adjudication that the building restriction is “binding, valid and enforceable against the Self's [ sic ] as the owners of the Restricted Property and as against all subsequent owners of the Restricted Property.”

The Selfs and the Sharafis both filed motions for summary judgment. The Selfs argued in their motion that, as a matter of law, the building restriction is not enforceable as a covenant running with the land or as an equitable servitude. The Sharafis argued the building restriction is enforceable as a covenant running with the land under two different statutes that define such covenants—section 1462 and former section 1468. They additionally argued that the building restriction is enforceable as an equitable servitude, and as a negative easement. The court granted the Selfs' motion and entered judgment in favor of the Selfs and against the Sharafis, ruling the building restriction is not a covenant running with the land, an equitable servitude, or a negative easement.

IIDISCUSSION

Because the material facts are undisputed, the legal significance of those facts presents a question of law, which we review de novo. (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 774, 130 Cal.Rptr.3d 454; Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 707, 99 Cal.Rptr.3d 418.)

A. Statutory Scheme for Covenants Running with the Land

Section 1460 provides: “Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land.” Section 1461 provides: “The only covenants which run with the land are those specified in this Title, and those which are incidental thereto.” A covenant can run with the land under either section 1462 or section 1468. (Monterey/Santa Cruz County Bldg. etc. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, 1517, 120 Cal.Rptr.3d 830.) To run with the land, a covenant must touch and concern land, which means it must affect the parties as owners of the particular estates in land or relate to the use of land. (Anthony v. Brea Glenbrook Club (1976) 58 Cal.App.3d 506, 510, 130 Cal.Rptr. 32 (Anthony ).) “The primary characteristic of a covenant running with the land is that both liability upon it and enforceability of it pass with the transfer of the estate. The benefits or burdens pass by implication of law rather than under principles of contract.” (Ibid.)

B. The Building Restriction Is Not a Covenant Running with the Land Under Section 1468

The former version of section 1468 that was effective in 1946 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.” (Stats. 1905, ch. 450, § 1, p. 610.) The Legislature amended section 1468 in 1968 and 1969 to make covenants that run with the land analytically closer to equitable servitudes and to make the statute applicable to covenants between a grantor and grantee, as well as between separate landowners. (Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 354, 47 Cal.Rptr.2d 898, 906 P.2d 1314 (Citizens ).) However, those amendments “have been held to apply only to covenants postdating their enactment.” (Ibid.) Accordingly, our determination of whether the building restriction at issue in this case is a covenant running with the land under section 1468 is governed by the former version of section 1468 in effect in 1946.

We conclude that the building restriction is not a covenant running with the land under the former version of section 1468 because that statute “only applied to a covenant ‘made by the owner of land with the owner of other land,’ and not to a covenant between a grantor and a grantee.” (Citizens, supra, 12 Cal.4th at p. 353, 47 Cal.Rptr.2d 898, 906 P.2d 1314; Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 377–378, 101 P.2d 490 (Marra ).) Although Fleet and the Donovans were adjoining landowners before Fleet severed Lot 4 and conveyed a portion of it to the Donovans, the subject building restriction is contained in the grant deed by which Fleet made that conveyance. The building restriction was not a covenant concerning other parcels that Fleet and the Donovans owned before or after that conveyance. Because the covenant at issue in this case is contained in a grant of real property and predates the amendments to the original version of section 1468, it is governed exclusively by section 1462. (Marra, at p. 377, 101 P.2d 490 [“Covenants ... contained in a grant in fee of real property, are governed solely by section 1462....”].)

C. The Building Restriction Is a Covenant Running with the Land Under Section 1462

Section 1462 provides: “Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.” “The decisions have interpreted [section 1462] to mean that a burdensome covenant contained in a deed which in no way benefits the property conveyed is not binding at law upon the transferees of the grantee.” (Marra, supra, 15 Cal.2d at p. 378, 101 P.2d 490.) Conversely, when a covenant benefits, and does not burden, the property conveyed, it runs with the land under section 1462 and is binding on transferees of the grantee. (Citizens, supra, 12 Cal.4th at pp. 353, 368, 47 Cal.Rptr.2d 898, 906 P.2d 1314.) Whether a covenant in a grant of real property benefits the conveyed property so as to run with the land under section 1462 is determined in light of the conditions existing at the time of the grant. (Robertson v. Nichols (1949) 92 Cal.App.2d 201, 205, 206 P.2d 898.) The fact that the covenant does not mention “assigns” is immaterial; the question must be determined from the nature of the covenant itself. (Sacramento Suburban Fruit Lands Co. v. Whaley (1920) 50 Cal.App. 125, 133, ...