Can You Abandon Real Estate (Gerhard v. Stephens (1968) 68 Cal.2d 864, 876-877)?

underwood-can-you-abandon-real-estate-300x300Generally, an owner can never legally “abandon” title to property. (Gerhard v. Stephens (1968) 442 P.2d 692, 713.) Instead, abandonment can only be found in situations dealing with personal property. Yet when the property interests in real property are in the nature of incorporeal hereditaments, the California Supreme Court has found that those interests can be abandoned. 

For a person to abandon property, or a right in property, there needs to be a nonuse accompanied by unequivocal and decisive acts on the part of the nonuser clearly showing an intention to abandon. (People v. Southern Pacific Co. (1916) 158 P. 177, 180.) Accordingly, in order to find abandonment, a trier of fact must find that the owner clearly and convincingly demonstrated the necessary intent to abandon. (Gerhard v. Stephens (1968) 442 P.2d 692, 713.)

What is an Incorporeal Hereditament?

The term “corporeal hereditament” refers to tangible real property. (Id. at 705). Subsequently, an “incorporeal hereditament” is a right that then stems from a corporeal thing, in this case real property. (Id.) In Gerhard, some plaintiffs had conveyed to some corporations the exclusive and perpetual privilege to drill for oil and gas. (Id. at 704). The court noted that California law classifies these types of interests as a profit A pendre. (Id.) Profits A pendre, together with easements, are classified by California common law as incorporeal hereditaments. (Id. at 706.) 

Perpetual easements and perpetual profits have been described in identical terms and treated similarly. (Id.) As such, the California Supreme Court in Gerhard stated that cases have held that perpetual easements created by grants in real property can be abandoned. (Id. at 708). Therefore, the Court found that it followed that all incorporeal hereditaments can be abandoned. (Id.)

Can Abandoned Property Be Taken By Adverse Possession?

In cases like Gerhard where the property abandoned was the oil and gas underlying the surface, the California Supreme Court clarified that an owner’s possession of the surface does not necessarily earn property rights, previously conveyed to another, in the oil and gas underneath the surface. (Id. at 719). The defendants in that case attempted to claim ownership of a section of property through adverse possession, and in turn, the oil and gas beneath it. 

The Court went on to note that although the courts generally have held that adverse possession of the surface extends to the underlying mineral estate, continued possession of the surface, following a conveyance of the oil and gas rights apart from the surface, does not establish the possessor’s rights against the legal owner. (Id.) This is because the true owner of a mineral interest would not be alerted to a hostile claim on part of an occupant who takes no steps to penetrate the surface (Id.) 

Since the defendants in Gerhard did not begin drilling on the said adversely possessed section of property until after the commencement of the law suits, the Court found no evidence to support a finding that the defendants had acquired the oil and gas rights through adverse possession. (Id.) It is noted that an easement cannot be acquired or extinguished by adverse use unless the party whose rights are affected thereby has knowledge of the adverse nature of such use. This knowledge may be either actual or constructive, resulting from notice either express or implied. (Clark v. Redlich (1957) 305 P.2d 239, 244.)

An Example

“Julie” and “Shawn” inherited land from their parents. Each sibling received an undivided one-half interest in the property. Shawn told Julie that he would take care of all of the maintenance and expenses of the property while she was in school. Shawn lived at the property while Julie did not. Relying on Shawn’s words, Julie did not contribute to the property nor add to its maintenance. 

After some time, Shawn filed a quit title claim against Julie, contending that she had abandoned the land and her interest in the property because she was not in possession of the property nor had shown any interest in claiming the land for herself. Julie of course was deceived by her brother and explained that although her actions may have shown a disinterest on her part, she did have plans to repossess and contribute to her interest in the land. Additionally, Julie’s attorney noted that courts had previously found that real property in fee simple could not be abandoned as it would leave a void in the title.

The court, relying on common law, agreed that legal title to a fee simple could never be abandoned. Julie and Shawn had each obtained a fee simple interest in the property from their parents when they inherited it. Consequently, despite the claims of her brother, Julie held a permanent and absolute half interest in the property in fee simple given to her by her parents. Therefore, Shawn could not claim that Julie abandoned the property and the court ruled in Julie’s favor. Julie remained in possession of her on-half interest in the property which she could later use to commence a partition action against her brother if she so deserved. 

How the Attorneys at the Underwood Law Firm Can Help

When property is owned by more than one owner, one of the owners may attempt to obtain full ownership of the land by claiming that the other owner has abandoned their interest in the real property. However, the abandonment of real property is only recognized in limited situations such as when the ownership interest is in an easement or in a profit A pendre. 

As each case is unique, litigants would be well-served to seek experienced counsel familiar with protecting property interests. At the Underwood Law Firm, our knowledgeable attorneys are here to help. If you are seeking representation to protect your ownership in property, or if you just have questions, please do not hesitate to contact our office.

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