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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

KAMALA D. HARRIS
 

Attorney General
 

: 

OPINION : No. 93-407 

: 

of : October 13, 1993 

: 

DANIEL E. LUNGREN : 

Attorney General : 

: 

CLAYTON P. ROCHE : 

Deputy Attorney General : 

: 

THE HONORABLE BERNIE RICHTER, MEMBER OF THE CALIFORNIA 

ASSEMBLY, has requested an opinion on the following question: 

May a city enforce an annexation agreement executed by the city and a landowner 

of unincorporated property which requires the landowner, as a condition of receiving city 

sewer services, to waive his or her right to protest the annexation of the property to the 

city when such becomes legally permissible, with the waiver binding upon the 

landowner, future owners, long-term lessees, and other persons residing on the property? 

CONCLUSION 

A city may enforce an annexation agreement executed by the city and a landowner 

of unincorporated property which requires the landowner, as a condition of receiving city 

sewer services, to waive his or her right to protest the annexation of the property to the 

city when such becomes legally permissible, with the waiver binding upon the 

landowner, future owners and long-term lessees of the property, but not other persons 

residing on the property unless they have actual knowledge of the agreement. 

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ANALYSIS 

We are informed that a California city has numerous islands of unincorporated 

territory within its urban area. In supplying sewer services to these unincorporated areas, 

it has imposed certain conditions upon landowners in exchange for furnishing the 

services. As to property adjacent to the city, the landowner must file a petition to have 

the property annexed to the city. The owner of land which is not contiguous, and hence 

not immediately annexable, must execute and record a “sewer service and annexation 

agreement” which in part: 

“1.	 Contains a waiver by the owner of the premises of any right 

of protest to the annexation of the premises to the 

incorporated territory of the city provided for under the 

annexation laws of the state of California, 

“2.	 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
 

“3.	 Provides that the agreement and any waiver, covenants and 

conditions set forth therein run with the land on which the 

premises are located; . . . .” 

The question presented for resolution is whether the city may enforce these waiver terms 

against (1) the landowner who has executed the waiver, (2) future owners of the property, 

(3) long-term lessees of the property, and (4) other persons residing on the property. We 

conclude generally that the waiver terms may be enforced by the city. 

Preliminarily we note that there is no duty on the part of a city to provide sewer 

services to properties located outside of its boundaries. In fact, a city is not always 

required to provide sewer services within its boundaries. (Richards v. City of Tustin 

(1964) 225 Cal.App.2d 97.) 

As for the annexation of territory to a city, the governing statutory scheme is the 

Cortese-Knox Local Government Reorganization Act of 1985 (Gov. Code, §§ 56000-

57550; “Act”).1 The Act allows landowners and registered voters in “inhabited territory” 

(12 or more registered voters) to file written protests against a proposed annexation. 

(§ 57051.) Depending upon the number of protests received, the annexation proceedings 

may be terminated, an election held, or completed without an election. (§§ 57075, 

57078.) Does the application of these state laws prevent a city from requiring a waiver of 

annexation protest rights as a condition of furnishing sewer services? 

1 All references hereafter to the Government Code are by section number only. 

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In Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d 239, 246-247, the 

court stated: 

“The annexation of territory by a city has long been held to be both a 

legislative matter and one of statewide concern. [Citations.] Consequently, 

matters relating to the annexation of territory to a municipality are not 

municipal affairs. [Citations.] 

“Therefore, the municipal charter may not contain provisions 

pertaining to annexation which are contrary to the general laws of statewide 

application. `The annexation of territory to a city is governed by the 

general laws of the state and is not a municipal affair [citation], and where a 

city council proceeds under legislative requirements relating to annexation, 

such requirements constitute the measure of power to be exercised. 

[Citations.] . . . . 

“The intention of the state Legislature to occupy the field in 

annexation procedures is evidenced by its declaration that MORGA shall 

provide the exclusive method for changes of organization (§ 35002) which 

include annexations (§ 35027). `[W]here the statute contains express 

provisions indicating that the Legislature intends its regulations to be 

exclusive within a certain field, local government may not legislate in that 

field. . . .”2 

Under Ferrini, then, it could be argued that a city may not by ordinance, contract, or 

otherwise, require annexation protest waivers from landowners or voters. 

In Morrison Homes Corp. v. City of Pleasanton (1976) 58 Cal.App.3d 724, 

however, the Court of Appeal upheld an agreement by a developer to have his property 

annexed to a city when legally permissible in exchange for connecting the property to the 

city’s sewer system. The court rejected the argument that the agreement would violate 

the annexation statutes, stating as follows: 

“The annexation process involves a legislative function of municipal 

government, in that a city engaging in it exercises a legislative power 

2 “MORGA,” the Municipal Organization Act of 1977, was replaced by the Act; the 

latter has a similar provision: “this division provides the sole and exclusive authority for 

the initiation, conduct, and completion of changes of organization and reorganization for 

cities and districts” (§ 56100). 

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expressly delegated to it by the state [citation] in pertinent statutes. . . . Its 

establishment and operation of a municipal sewer system is a 

`governmental function’ [citation] which it may perform under 

constitutional and statutory authority alike, . . . [citations]. The cited 

sources of a city’s authority to discharge the annexation or sewage 

functions do not expressly vest it with the authority to contract for either 

purpose, but they have this effect by necessary implication: `[A] city has 

authority to enter into contracts which enable it to carry out its necessary 

functions, and this applies to powers expressly conferred upon a 

municipality and to powers implied by necessity. [Citation.]’ (Carruth v. 

City of Madera (1965) 233 Cal.App.2d 688, 695 [annexation contract]. See 

McBean v. City of Fresno (1896) 112 Cal. 159, 161-163, 170 [sewage 

disposal contract].)” (Id., at pp. 733-734; fn. omitted.) 

In Carruth v. City of Madera (1965) 233 Cal.App.2d 688, 695, relied upon in Morrison, 

the court sanctioned an annexation agreement which involved the provision of sewer 

services by a city to a proposed subdivision. 

While an annexation agreement executed by a landowner in exchange for sewer 

services would thus not conflict with the provisions of the Act, does this mean that a right 

to protest an annexation proposal may always be waived by a landowner? Section 3513 

of the Civil Code provides: 

“Anyone may waive the advantage of a law intended solely for his benefit. But a 

law established for a public reason cannot be contravened by a private agreement.” 

The general operation of Civil Code section 3513 was summarized in Outboard Marine 

Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41, as follows: 

“Unless otherwise provided by law, any person may waive the 

advantage of a law intended for his benefit. (Civ. Code, § 3513.) Waiver is 

the voluntary relinquishment of a known right. [Citation.] To constitute a 

waiver, it is essential that there be an existing right, benefit, or advantage, a 

knowledge, actual or constructive, of its existence, and an actual intention 

to relinquish it or conduct so inconsistent with the intent to enforce the right 

in question as to induce a reasonable belief that it has been relinquished. 

The doctrine of waiver is generally applicable to all the rights and 

privileges to which a person is legally entitled, including those conferred by 

statute unless otherwise prohibited by specific statutory provisions. 

[Citations.] . . . .” 

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On the other hand, as the court noted in Covino v. Governing Board (1977) 76 

Cal.App.3d 314, 322, in holding that a teacher could not waive his status as a 

probationary teacher in order to be employed as a temporary, full-time teacher: 

“Appellant’s claim that despite the provisions of the code he should 

be permitted to waive his right to the probationary status may not be 

accepted for two major reasons. One, while as a general rule anyone may 

waive the advantage of law intended solely for his benefit, a law 

established for a public reason cannot be waived or circumvented by a 

private act or agreement (Civ. Code, § 3513; [citations].) Teachers are 

public employees and their tenure rights elaborately regulated by the 

Education Code reflect the public policy of the state. As stated in De 

Haviland v. Warner Bros. Pictures (1944) 67 Cal.App.2d 225, 235: 

`Legislation which is enacted with the object or promoting the welfare of 

large classes of workers whose personal services constitute their means of 

livelihood and which is calculated to confer direct or indirect benefits upon 

the people as a whole must be presumed to have been enacted for a public 

reason and as an expression of public policy in the field to which the 

legislation relates.’ . . . .” 

Consequently, a statutory right may be relinquished if there is knowledge of the right, the 

waiver is intentional, and the right is intended solely for that individual’s benefit and is 

not intended for a public purpose. 

A landowner signing the protest waiver in question would clearly have 

“knowledge” of the right, but would the right be intended solely for his or her benefit? 

We believe that it would. In Northridge Park Water District v. McDonell (1958) 159 

Cal.App.2d 556, the question was whether a water district could adjourn a hearing 

required by law based upon the landowners’ waivers of the statutory requirements. The 

court concluded: 

“. . . No such adjournment was ordered, probably because each 

petition contained an express consent that the lands be included in 

Improvement District Number 1 and express waiver of the code 

requirement of adjournment. Section 32472 of the Water Code provides 

that if, during adjournment, protests are filed to inclusion, under the 

prescribed conditions, by a majority in number of the holders of title to the 

land proposed to be included, representing a majority in acreage of said 

land, the board shall dismiss the petition; otherwise the land shall be 

included subject to the conditions. It is apparent that the adjournment 

provision is to enable petitioners for inclusion to object to the proposed 

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conditions and for no other purpose. This statutory provision being for their 

benefit, they may waive it, as they did. . . .” (Id., at p. 562.) 

Similarly, in Allen v. Hance (1911) 161 Cal. 189, the court held that a landowner could 

waive his right to contest the validity of a street improvement proceeding. Pursuant to 

Civil Code section 3513, therefore, we conclude that a landowner may waive his or her 

right to protest a future annexation of the property by a city furnishing sewer services to 

the property. 

As for any future owners of the property and long-term lessees, section 1589 of 

the Civil Code provides: 

“A voluntary acceptance of the benefit of a transaction is equivalent 

to a consent to all the obligations arising from it, so far as the facts are 

known, or ought to be known, to the person accepting.” 

Here, the subsequent purchasers and long-term lessees would clearly “accept” the 

benefits of the original agreement, i.e., the sewer services, but would they know or ought 

to know of the agreement? We believe that the answer may be found in the recording 

laws (Civ. Code, §§ 1169-1220), which would give them constructive knowledge of the 

prior landowner’s waiver. The recording of a conveyance of real property provides 

constructive notice of its contents to subsequent purchasers, among others. Civil Code 

section 1213 provides: 

“Every conveyance of real property or an estate for years therein 

acknowledged or proved and certified and recorded as prescribed by law 

from the time it is filed with the recorder for record is constructive notice of 

the contents thereof to subsequent purchasers and mortgagees . . . .” 

A “conveyance” of real property is defined in Civil Code section 1215 as follows: 

“The term `conveyance’ as used in Sections 1213 and 1214, 

embraces every instrument in writing by which any estate or interest in real 

property is created, aliened, mortgaged, or incumbered, or by which the title 

to any real property may be affected, except wills.” 

In American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1020, the 

court explained: 

“The principle is well settled that once an instrument that affects real 

property is recorded, all persons who later acquire any interest in the 

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property are conclusively presumed to have constructive notice of the 

contents of the recorded document. (Civ. Code, §§ 1213-1215, 2934, 2952; 

Dexter v. Pierson (1931) 214 Cal. 247 . . . .” 

The recording laws apply equally to long-term lessees as they do to subsequent 

purchasers. (See Civ. Code, §§ 1214-1215; Commercial Bank v. Pritchard (1899) 126 

Cal. 600, 603; Garber v. Gianella (1893) 98 Cal. 527, 529; Dean v. Brower (1931) 119 

Cal.App. 412, 415.) 

In an analogous case, Citizens Suburban Co. v. Rosemont Dev. Co. (1966) 244 

Cal.App.2d 666, the court applied section 1589 of the Civil Code to “successors” of a 

contract under which a water company agreed to supply water to a development. While 

“privity of contract” was found to be lacking, the court held that the successors were 

subject to the burdens of the original contract under “privity by estoppel.” The court 

concluded: 

“A fitting criterion of privity is supplied by a concept appearing 

elsewhere in this case. The concept is that expressed in Civil Code section 

1589, supra. Applied to the facts, it would be expressed as follows: 

Voluntary and knowing acceptance of contract benefits among the 

successive subdividers created a chain of privity without regard to express 

assignments or formal assumptions of contract burdens. At the time of the 

December 1956 water service agreement the ostensible contracting party 

(Rosemont Development Co., the limited partnership) had already left the 

scene. Immediate beneficiary of Price’s nondisclosure was Wunderlich, the 

new operator of the Rosemont development. The evidence is not clear 

whether Wunderlich was the active developer in December 1956 or 

whether he had already turned the operation over to Price and to his son-inlaw, Reynolds. Either before December or within a few months thereafter, 

the Price & Reynolds partnership became the active developer. For several 

years following, the partnership used the water service agreement as an 

important instrumentality in the continued expansion of the Rosemont 

development. When the two partners incorporated, the corporation 

continued to receive the benefits of the Citizens Suburban water supply in 

the developed units of the subdivision. Price, a pervading figure in all these 

entrepreneurships, was perfectly aware of the methods he had used to lure 

Citizens Suburban into its commitments. Knowing acceptance of the 

contract benefits by each of the successive developers creates privity which 

estops the present developers from asserting that they are not `successors’ 

of the original contracting party.” (Id. at p. 681.) 

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In Haas v. Palace Hotel Co. of S.F. (1950) 101 Cal.App.2d 108, 117, the court stated: 

“While a person may accept the benefits of a contract made for his benefit, such 

acceptance implies an acceptance of the burdens necessarily connected with the 

contract.” 

Accordingly, we conclude that subsequent purchasers and long-term lessees of the 

property would be subject to the burdens of the original agreement, that is, waiver of the 

right to protest any annexation proposal. Pursuant to section 1589 of the Civil Code, a 

privity of contract by estoppel would arise.3 

Unlike subsequent owners and long-term lessees, “renters” (persons with leases of 

less than a year, usually month to month tenants) would not have constructive notice of 

the original owner’s agreement under the terms of Civil Code sections 1214 and 1589. 

Accordingly, if renters are to be found subject to a landowner’s waiver, actual knowledge 

of the agreement would be required. If they do have such knowledge,4 they would, by the 

acceptance of the benefits of the sewer services and privity of contract by estoppel, be 

subject to the original waiver. (Citizens Suburban Co. v. Rosemont Dev. Co., supra, 244 

Cal.App.2d 666; Haas v. Palace Hotel Co. of S.F., supra, 101 Cal.App.2d 108.) 

In answer to the question presented, therefore, we conclude that a city may enforce 

an annexation agreement executed by the city and a landowner of unincorporated 

property which requires the landowner to waive his or her right to protest annexation of 

the property to the city when such becomes legally permissible, with the waiver binding 

upon the landowner, future landowners and long-term lessees of the property, but not 

other persons residing on the property unless they have actual knowledge of the 

agreement. 

***** 

3 Due to our analysis of Civil Code section 1589 and the conclusion that we reach, we 

need not determine the effect of the “run with the land” requirement of the particular 

waiver agreement in question. 

4 For example, the terms of the waiver could be placed in the rental agreements. 

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