1. Introduction.
An easement is the right granted to a third person to use your real property in a specified manner. An easement may be given, for example, for overhead wires, underground gas, power, sewer or storm drain lines, for sidewalk or street purposes, for neighbors to maintain their views, or even for airplanes to fly over your home on a regular basis. The latter right refers to an avigation easement, which is sometimes called an air easement or aircraft easement.
Most parcels of real property are affected by easements along the exterior boundaries or adjacent to the street. Those easements usually do not interfere with development of the property or cause a reduction in value of the property. By way of contrast, easements that cross the middle of the property or cover the entire property may cause serious reductions in value, or cause the property to have little or no value.
2. Condemnation of Avigation Easements and other Methods of Acquisition.
California law expressly authorizes a government agency operating an airport to condemn avigation easements. California Public Utilities Code section 21652 states in relevant part as follows:
"(a) Any person authorized to exercise the power of eminent domain for airport purposes may acquire by purchase, gift, devise, lease, condemnation, or otherwise: . . . (2) Airspace or an easement in such airspace above the surface of property where necessary to permit imposition upon such property of excessive noise, vibration, discomfort, inconvenience, interference with use and enjoyment, and any consequent reduction in market value, due to the operation of aircraft to and from the airport."
Condemnation is a legal proceeding whereby a homeowner is forced to sell his property, or a portion thereof. A real estate appraiser is hired to determined the value of the property interest being taken, and the court determines the value in the event the parties cannot agree. In the case of an avigation easement, the appraiser determines the decrease in value of the home caused by aircraft constantly flying over or nearby. This amount is paid to the homeowner, and thereafter the homeowner can no longer legally complain. This is because the homeowner has been compensated for the nuisance, and he can either keep his home and tolerate the noise or sell his home and move to a quieter neighborhood.
A government agency can also, of course, purchase an avigation easement from a property owner, or receive a gift of such an easement.
3. Effect of Recorded Avigation Easements.
Following a judgment in a condemnation lawsuit, or upon the conclusion of a purchase agreement, a formal legal document is prepared and recorded against the title to the real property. This document is usually termed an "Avigation Easement", and constitutes notice to everyone checking on the title to an affected property. Because this document is recorded, it binds a purchaser even if he was unaware of its existence before he completed his purchase. All documents affecting title, including avigation easements, are referenced in a preliminary (title) report issued by a title insurance company. The prospective purchaser is normally given ten days to approve a title report, or to disapprove and back out of the transaction.
A recorded avigation easement must be read carefully for any limitations on the easement. For example, the easement may require all aircraft to fly at a height of 1,500 feet over the property. Any flights at a lower elevation would, therefore, be in violation of the easement and entitle the homeowner to sue for violations.
4. When an Avigation Easement is Required.
A California Court of Appeal decision (Baker v. Burbank-Glendale-Pasadena Airport Authority (1990) 220 Cal.App.3d 1602) states when an avigation easement is required:
"(3) "Avigation easements are required only when the noise, vibration, fumes, fuel particles and inconvenience caused by low-flying aircraft interfere with the use and enjoyment of the underlying property to the extent it amounts to a taking. [Citations.]"
The term "taking" is a term of art, and refers to constitutional prohibitions against a government taking private property without paying compensation. Suffice it to say that no court has ever ruled in California that the real property must be located within the 65 CNEL contour or higher before an avigation easement must be acquired from a homeowner.
Measure "A"provides that property rights are to be protected. The specific language is:
"PF 6.3: Interference with Property Rights. It is the intention of the Orange County/El Toro Economic Stimulus Initiative that civilian air cargo and passenger use of El Toro MCAS shall cause less adverse impacts to adjoining private property owners and occupants than impacts imposed by military flight operations. If, after challenge by an affected landowner, the Board of Supervisors finds that application of Policies PF 1 through PF 6 or any part thereof regarding reuse of the El Toro MCAS would constitute an unconstitutional taking of the landowner's property or would deprive the landowner of a vested right pursuant to state law, the Board of Supervisors may allow reasonable use of that landowner's property to the minimum extent necessary to satisfy constitutional obligations."
Although the above language is poorly worded and makes little legal sense, the voters were told that property rights of affected homeowners would be protected.
5. The County has been Acquiring Avigation Easements for Free from the Developers of New Homes.
In recent years, the County of Orange has been conditioning the approval of new home subdivisions on the developer granting an avigation easement over his entire project to the County. (Various forms of easements have been located, and it is extremely important that each easement be thoroughly read.)
The County has not paid developers any money for these avigation easements. The developer must choose whether or not to develop his property, (or file an expensive lawsuit challenging the requirement of the avigation easement).
The effect of the avigation easements is that the buyers of these new homes are being deprived of their right to sue the County of Orange for damages for noise, for the decrease in value of their homes, or to require sound insulation in the event that El Toro becomes a commercial airport. (The County has claimed in a memo from its attorneys to the Board of Supervisors that it has allowed homeowners as a matter of policy to participate in sound insulation programs, notwithstanding that avigation easements were previously obtained.)
These avigation easements are generally located in the newer communities in South Orange County, including Aliso Viejo, the newer portions of Mission Viejo, and Northwood 5 in Irvine. These easements have been obtained, even though the developments are located in projected CNEL noise contours of less than 65! The County is obviously afraid of lawsuits, even where the noise contours are lower.
6. Current form of Avigation Easements.
Following is a form of Avigation Easement currently being used by the County of Orange.
"AIRCRAFT OPERATIONS, SOUND, AIR SPACE AND AVIGATION EASEMENT DEED
WHEREAS, , hereinafter called the "Grantors," are the owners in fee of those certain parcels of land situated in the County of Orange, State of California, more particularly described as follows: hereinafter called "the Grantors property", or "the property."
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, "Grantors," does (sic) hereby grant to the COUNTY OF ORANGE, a body corporate, and politic, hereinafter referred to as "Grantee," its successors and assigns, a perpetual easement in gross for aircraft operation, aircraft sound and noise, aircraft avigation and flight, hazard and air space, referred to hereinafter, one word for the entirety, as a perpetual, nonexclusive avigation easement in, to, over and through all air space above Grantors property, as particularly described hereinbefore, and on and to the surface of the property and on, to and through all structures now existing or hereafter constructed on the property, or any portion of the property.
The Grantors herein, their heirs, administrators, executors, successors and assigns, grant the aviation easement to Grantee, for the use and benefit of the public, including, but not limited to the U.S. Armed Forces, for the passage of all aircraft ("aircraft" being defined for the purposes of this instrument as any contrivance now known or hereafter invented, used or designed for navigation of or flight in the air) by whomsoever owned and operated, together with the rights to cause in all air space above, and on and to, the surface of Grantors property (including all structures) such noise, vibrations, fumes, dust, fuel particles and all other effects that may be caused by the operation of aircraft landing at, or taking off from, or operating at or on the Marine Corps Air Station at El Toro and any other airport or air facility which is or may be located at or near the site of the said Marine Corps Air Station; and Grantors, for themselves, and all purchasers, administrators, executors, successors and assigns to the property at any time, and in perpetuity, do hereby fully waive, remise and release any right or cause of action which they may now have or which they may otherwise accrue in the future against Grantee, its successors and assigns, due to such noise, vibrations, fumes, dust, fuel particles and all other effects that may be caused or may have been caused by the operation of aircraft landing, at or taking off from, or operating at or on said Marine Corps Air Station at El Toro.
TO HAVE AND TO HOLD said easement and all rights appertaining thereto unto the Grantee, its successors and assigns, it being understood and agreed that these covenants and agreements shall run with the land.
This easement is granted for any use by any aircraft, present or future, from or to the Marine Corps Air Facility at El Toro and any other airport or air facility which is or may be located at or near the site of said Marine Corps Air Station, including any future change or increase in the boundaries of the airport or air facility, the type or models of aircraft using any such airport or air facility, the volume or nature of operation of the airport or air facility, or the aircraft using such facility or airspace in the vicinity of the airport or air facility, or noise or pattern of air traffic thereof.
DATED: Signed in the presence of:
By:
By:"
7. Previous Forms of the Avigation Easement included a Height Limitation in Language such as:
". . . a perpetual, nonexclusive avigation easement in, to, over and through all air space above Grantor's property, as particularly described hereinbefore, above a mean sea level of 1500 feet, to an indefinite height above said mean sea level."
For some reason, the height limitation set forth in various recorded easements has varied. The County has now discovered that some of their easements may be worthless, since aircraft will be flying lower than as required by the easements! This means that homeowners will still be entitled to bring lawsuits.
8. Developer Sales Practices.
The Orange County Board of Supervisors at its regular meeting on July 28, 1998, voted to require that the disclosure to new home buyers in Planning Areas 40, 52 and 53 in the community of Aliso Viejo include prominent displays of projected aircraft flights in the sales office including a map at least 2 feet by 3 feet, and provide copies of such map on paper which is 8 1/2 inches by 11 inches.
Previous sales practice appears to be that the avigation easements were not disclosed until after the potential home buyer had already decided to purchase a new home. Buyers were then requested to sign a packet of documents, including numerous disclosure documents. It appears that home buyers have not understood the significance of the avigation easements, and were not furnished the documents in advance of signing so that they could carefully consider them and consult with an attorney.
9. Effect of Avigation Easements on Home Values.
At this time no commercial aircraft are flying out of El Toro. The military use will continue until mid-1999, and then cease. The military planes generally do not fly at night, and sleeping at night is not a problem for residents. And, the flight and noise levels have generally diminished during the last several years.
Real estate agents have told the author that the market values have not adjusted for a possible commercial airport at El Toro. This is because buyers are either unknowledgeable or believe that a commercial airport will be defeated.
If commercial airplanes start flying out of El Toro, the effect of airplane noise, fumes, vibration, soot, etc. will then be fully known. Homes adversely affected will see immediate reductions in market value from 10% to 33%. Home owners without avigation easements will be able to file lawsuits to recover their loss in home values, plus damages for the noise. Home owners with avigation easements will not be able to file lawsuits (unless the terms of the easements have been violated). It should be added that developers who have not made a full and complete disclosure to their buyers could be sued for fraud and misrepresentation. It is expected that there will be numerous such lawsuits.
This author has visited several model home complexes in areas covered by avigation easements. This author was falsely told that the development was not covered by an avigation easement, he was falsely told that the homes were noise insulated, he was falsely told that the required environmental cleanup will take 20 years to complete and that no planes could fly until that time, he was falsely told that the noise level would be equivalent to what Newport Beach residents hear who live under the flight path of John Wayne Airport. No maps of the El Toro airport were on display in any of the sales offices. A large color photograph on the wall in one sales office failed to show the existing runways at El Toro MCAS.
10. Full and Fair Disclosure.
Any potential home buyer should demand that the developer disclose in writing whether the sales price of the new home has been discounted by reason of the value of the avigation easement. This author is not aware of any such price reduction, although homes in the affected areas could drop in value by as much as 33% in the event that a commercial airport opens at El Toro.
11. How to Determine whether your Home is Covered by an Avigation Easement.
To determine whether your home is covered by an avigation easement, a person needs to examine his title policy at Schedule B. By reviewing the exceptions, one can determine if there is any reference to an avigation easement, an airplane easement, an air space easement, or anything similar. Copies of suspected documents must then be obtained either from a title insurance company or from the Orange County Recorder’s office, and the document(s) must be carefully read and reviewed. Any avigation easement will be similar to the language quoted at paragraph 6 of this article.
Some recorded documents merely give notification of noise from the existing Marine Corps Air Station at El Toro. An attorney should be consulted for the legal effect of such notification documents.
12. Disclaimers.
The author is an attorney practicing real estate law in Irvine, California. He serves as Chairman of the Legal Advisory Committee for Taxpayers for Responsible Planning.
The foregoing article is not intended as legal advice, and has been written solely for general informational purposes. Any person intending to buy or sell real property in Orange County, or who has questions about real property he currently owns, should consult with legal counsel knowledgeable in real estate matters, and secure advice from competent real estate professions, including real estate appraisers.
The foregoing information may not be applicable to all cases, and should not be relied upon. Although the law consists of general propositions, numerous exceptions exist based on specific fact situations.
The foregoing article expresses the opinions of the author only, and has not been endorsed by any organization including Taxpayers for Responsible Planning.
August 15, 1998
For more on this subject see the author's webpages at http://pages.prodigy.net/ronsteinbach/nuisance.htm
|
|
|
|
|
|