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MILLER & STARR
REAL ESTATE NEWSALERT
ARTICLE
COURTS ARE WITHOUT POWER TO TERMINATE EXPRESS
EASEMENTS BASED UPON FINDING THEM “UNNECESSARY”—
COTTONWOOD REINS IN SCRUBY
By Lewis J. Soffer*
Main Article, Volume 23, Number 4
Reprinted in part from
Volume 23, Number 4, March 2013
(Article starting on page 259 in the actual issue)
In November 2012, the Third District Court of Appeal decided that a
trial court does not have the power to extinguish an expressly granted
easement merely because in that judge’s opinion the dominant tene-
ment does not really need the easement.1 Given that a deed, including
a deed granting or reserving an easement, is a contract,2 and that courts
may not rewrite deeds or other contracts in the guise of “interpreting”
them,3 the result in Cottonwood Duplexes, LLC v. Barlow should be
unremarkable. What is remarkable is the fact that the plaintiff in that
case, and the trial judge, believed that it was within the court’s equity
power to declare an outright termination of an expressly-granted ease-
ment based exclusively on the argument that the easement was no
longer “necessary.”
This article takes the position that the Cottonwood decision was en-
tirely correct; but argues that although Cottonwood may have begun
the process of clarifying the law governing partial obstruction of access
easements, more work needs to be done to remedy the uncertainty
and unpredictability that was inserted into California easement law by
another Court of Appeal decision nearly two decades ago.
* Lewis J. Soffer is a shareholder in the Walnut Creek office of Miller Starr Regalia.
