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No Parking
by Ron Davis

Plans for construction of a new shopping center in Murrieta, CA, have hit a snag over failure of the developer to assure adequate parking for shoppers.

The developer bought the property at a cost of $1,197,900 for the sole purpose of building the shopping center. But because of the property’s small size, city building regulations required the developer to somehow come up with parking space for an additional 52 vehicles. Otherwise, construction as planned would be illegal.

A representative for the sellers of the property eventually offered a solution: He proposed that an adjacent property could furnish the needed parking through an easement. That property, however, has different owners from those who sold the property to the developer. And the developer never gained those property owners’ consent for an easement.

Moreover, the owners of that adjacent property later sold it to a group that apparently had no intention of allowing its neighbor an easement for parking.

The developer sued the sellers of his property, claiming they defrauded him. He also sued the sellers of the adjacent property for breach of an oral contract, plus the new owners of the adjacent property to force them to comply with the terms of the easement he sought.

But the developer had nothing in writing regarding the easement. Nevertheless, he apparently believed that he was entitled to the easement needed for the parking of his shopping center’s patrons.

A California court rejected his contention, explaining, “The main thrust of [the developer’s] argument is that he is entitled to specific performance of an unexecuted oral agreement between himself and the previous owners of the property. We disagree…. He did not pay for an easement to the adjacent property. In other words, while the assertion that an easement may be created by an oral agreement is theoretically correct, he has not established the existence of an enforceable oral agreement.

Added the judges, “Extrinsic evidence of oral promises cannot be used to vary the obligations of the actual parties to a written agreement. We do not see how such oral assurances, not reflected in the superseding contract, can be binding on one who was not a party to that contract. An essential element of any contract is consent, which must be mutual.” (Hong v. Margarita Ville Ltd. Partnership, 2008 WL 401590 [Cal.App. 4 Dist.])

Decision: February 2008
Published: March 2008



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