Servitudes

Easement by necessity can be widened and its uses can be expanded

/ Easements, Servitudes

The Virginia Supreme Court held in Palmer v. R.A. Yancey Lumber Co., 803 S.E.2d 742 (Va. 2017) that an easement by necessity is not limited to uses existing at the time the easement was created by severance of the parcels creating a landlocked parcel with a need to traverse the servient estate to obtain access to the dominant property. An easement created in 1828 was used for road access and transportation of timber. More than a hundred years later, the Virginia Supreme Court not only allowed new methods of transportation to be used (tractor-trailers) but allowed the road to be widened to accommodate the new uses. Because the easement guarantees access to the dominant estate and the ability to use it effectively, the use of the easement can expand to accommodate the new uses to which the dominant estate is put. There is a limitation that the easement cannot be widened in …

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Defeasible easements are enforceable if clearly created

/ Easements, Estates and Future Interests, Servitudes

In Majestic Oaks Homeowners Ass’n v. Majestic Oaks Farms, Inc., 530 S.2d 3 435 (Ky. 2017), covenants for a residential subdivision creates easements that were subject to abolition by a supermajority vote of the homeowners. The Kentucky Supreme Court saw no reason not to allow easements to be made defeasible and upheld the power of the association to end the easements.

Doctrine of implied reciprocal negative servitudes only applies within the area intended to be covered by the general plan of uniform development

/ Real Estate Transactions, Servitudes

In Walters v. Colford, 900 N.W.2d 183 (Neb. 2017), a developer sold 14 lots with identical covenants restricting the property to one single-family two-story house and garage. The developer then solder a five-acre adjacent parcel without the covenants. The Nebraska Supreme Court held that the five-acre parcel was not part of the original common scheme and was not impliedly limited by the covenants. There was no basis for putting the future owners of that neighboring parcel on notice that they were part of a common scheme. Developers can avoid litigation about this issue by filing a declaration with a map that explicitly identifies the properties intended to be mutually restricted.

Courts debate whether short term rentals (like Airnbnb) violate restrictive covenants limiting property to “residential uses”

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) Other courts find short term rentals to be compatible with “residential use” and not a violation of such restrictive covenants at all. Wilkinson v. Chiwawa Communities Ass’n, 327 P.3d 614 (Wash. 2014); Santa Monica Beach Property Owners Ass’n v. Acord, 219 So.3d 111 (Fla. Dist. Ct. App. 2017)

Option to purchase property valid if exercised within the USRAP 30 year period

/ Real Estate Transactions, Servitudes, Title Issues

The Massachusetts Land Court has held that a commercial option to purchase property may be exercised nine years after the right to exercise the option ripened (because of failure to fulfill a condition by a set date). Pinewood Road, Inc. v. Kuntz, 2017 WL 361172 (Mass. Land Ct. 2017). The court noted the traditional rule that an option to purchase real property “that does not supply a time limit for it exercise must be acted on within a reasonable period of time.” This modern rule softens the strict rule against perpetuities which traditionally invalidated options that had no time limit as executive interests that could vest too far into the future. Massachusetts adopted the Uniform Statutory Rule Against Perpetuities which requires an option to be exercised within 30 years, but since this option was created after the effective date of the statute, the option was valid and could be exercised.

Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

/ Easements, Servitudes, Trespass

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than injunctive relief and use of the easement authorized upon payment of those damages, but no facts warranted an exception and a bright line rule was viewed as predictable and as a way to avoid lawsuits to determine whether use of the easement to access after-acquired land imposed a “burden” on the servient estate.

Electricity easement held not to encompass use for fiber-optic cable

/ Easements, Real Estate Transactions, Servitudes

While most courts have held that utility easements for electricity or telephone purposes can be used for cable television and other such purposes, see. e.g., Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo. Ct. App. 1985), a small number have gone the other way on the ground that easements are limited rights to use the land of another and that the use cannot exceed the scope of the original grant, see, e.g., Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002).  The Eighth Circuit recently took the minority approach in Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795 (8th Cir. 2017), holding that a rural electric cooperative’s easements did not allow use of fiber-optic cable installed alongside electrical lines to serve the general public. The court emphasized that an easement is a “right to use land for particular purposes,” and interpreted a statute that …

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Retroactive restraints on leasing in homeowners associations

/ Condominiums and Homeowners Associations, Estates and Future Interests, Leaseholds, Real Estate Transactions, Restraints on Alienation, Servitudes

The courts continue to divide over the question of whether it is fair to allow homeowners associations to impose retroactive restraints on leasing on existing owners who purchased with no notice of the restriction. While most states allow this, a few do not, and the Restatement (Third) of Property (Servitudes) §6.10(2), §6.10 cmt. g, takes the position that such major changes in property rights can only be accomplished prospectively unless there is a unanimous vote to alter those rights. The Idaho Supreme Court recently adopted what appears to be the majority approach, authorizing a homeowners association to retroactively prohibit existing owners from agreeing to short term rentals of less than six months. Adams v. Kimberley One Townhouse Owner’s Ass’n, 352 P.3d 492 (Idaho 2015). In contrast, the Supreme Court of Washington refused to allow retroactive restraints on short term rentals in Wilkinson v. Chiwawa Commties. Ass’n, 327 P.3d 614 (Wash. 2014), requiring unanimous approval for such …

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