Servitudes

Retroactive restraint on short term leasing by homeowners association upheld by Idaho Supreme Court

/ Condominiums and Homeowners Associations, Consumer Protection, Leaseholds, Real Estate Transactions, Restraints on Alienation, Servitudes

When a homeowner’s association voted to amend the declaration of covenants, conditions, and restrictions to prohibit short term leasing of units (rentals for less than six months), one of the townhouse owners sued to declare the retroactive restraint on alienation invalid. However, the Idaho Supreme Court found the retroactive restraint to be valid; it neither constituted an unreasonable restraint on alienation or exceeded the scope of the powers of the association to amend the declaration retroactively. Adams v. Kimberley One Townhouse Owner’s Ass’n, 352 P.3d 492 (Idaho 2015). The court held that the amendment to the declaration was merely an interpretation of what it meant to devote the property to single-family residential purposes and thus could not be unduly surprising to the owner. Moreover, the association had the power to amend the covenants and that amendment power subjected the individual owner to retroactive changes in ownership rights. While some courts would …

Retroactive restraint on short term leasing by homeowners association upheld by Idaho Supreme Court Read More »

Prescriptive easement granted when servient owner knew about but did not interfere with longstanding use of a path to access the waterfront

/ Easements, Servitudes, Trespass

The Massachusetts Land Court granted a prescriptive easement to neighbors who crossed a path on foot or on bicycle to get to the waterfront. Fantoni v. Assad, 2015 Mass. LCR LEXIS 108, 2015 WL 4208469 (Mass. Land Ct. 2015). The owner of the servient estate was aware that neighbors were using the path but did not stop them or object until an altercation broke out when one of the walkers kicked a neighbor’s dog. The court applied the traditional rule presuming the use to be adverse in the absence of any evidence of consent or permission. Once open use is established for the twenty-year statutory purpose, the burden is on the servient owner to show that permission was given for the use. If no permission can be shown by the servient owner, the access is presumed to be adverse. A minority of states now go the other way, presuming that limited use …

Prescriptive easement granted when servient owner knew about but did not interfere with longstanding use of a path to access the waterfront Read More »

Court finds sufficient evidence that an easement was abandoned

/ Easements, Servitudes

In Mello v. Town of Dighton, 2015 Mass. Super. LEXIS 48 (Mass. Super. Ct. 2015), the Massachusetts trial court found sufficient evidence to conclude that an easement was abandoned. The proof in such cases is high; mere non-use does not constitute abandonment. More direct evidence of intent to abandon is required. In this case, the easement was owned by a railroad and the railroad’s bankruptcy trustees conclusively demonstrated their intent never to make use of the easement by expressly abandoning it and stating that the easement was not needed for the railroad’s operations.

Developer stopped from converting golf course into housing by implied servitude arising out of marketing the golf course as an amenity for nearby homes previously sold by the developer

/ Easements, Servitudes, Statute of Frauds, Title Issues

A developer marketed homes as being next to a golf course with the golf course noted on sales material and the recorded plat. When the developer later tried to convert the golf course into residential lots, the homeowners sued, claiming an implied servitude. Despite the lack of any express covenant in the deeds, the court found the presence of the golf course with the designation as a “golf course” to be sufficient to find the property restricted to golf course purposes. Riverview Cmty. Grp. v. Spencer & Livingston, 337 P.3d 1076 (Wash. 2014). Similar cases include Agua Fria Save the Open Space Ass’n v. Rowe, 255 P.3d 390 (N.M. 2011); Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006).

Texas Supreme Court affirms distinction between easements implied from prior use and easements implied from necessity

/ Easements, Servitudes

The Texas Supreme Court has affirmed that easements by necessity exist when an owner sells a landlocked parcel that has no access to a public road. That owner (and subsequent) owners have a right to go over remaining land of the grantor to access to public way. For such a right to be recognized, there must be no alternative access to a public road. The court also found that it presumes that the parties intended to create such an easement and that evidence to the contrary would defeat the claim. (In contrast, some courts hold that owners have no power to create landlocked parcels even if that is the intent of the parties.) “To successfully assert a necessity easement, the party claiming the easement must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a …

Texas Supreme Court affirms distinction between easements implied from prior use and easements implied from necessity Read More »

House that substantially encroaches on neighboring property is a continuing trespass and neighbor has the right ask for its removal

/ Easements, Servitudes, Trespass

When someone intentionally builds a building or part of a building on land owned by another, the land owner may obtain an injunction ordering removal of the trespassory structure. But when someone innocently builds a structure that encroaches on neighboring property, many courts today applied the undue hardship or relative hardshp doctrine and allow the structure to remain on the ground that land owner is partly at fault for not noticing the incursion and stopping it before substantial expense is undertaken by the innocent builder. In such cases, the court usually orders a forced sale of the land on which the building sits. See, e.g., Somerville v. Jacobs, 170 S.E.2d 805 (W.Va. 1969). However, older cases would order removal rather than a forced sale and the Rhode Island Supreme Court apparently prefers the older approach.  In Rose Nulman Park Found. ex rel. Nulman v. Four Twenty Corp., 93 A.3d 25 (R.I. 2014), …

House that substantially encroaches on neighboring property is a continuing trespass and neighbor has the right ask for its removal Read More »

Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements

/ Adverse Possession, Easements, Servitudes, Title Issues

In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the two doctrine. A significant minority of courts however now reverses the presumption when a prescriptive easement is claimed on the ground that neighbors often allow neighbors to make limited uses of their property and that such neighborly accommodations are generally informal grants of permission for such uses. It seems wrong to punish …

Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements Read More »

Express easement is permanent even if created out of necessity and the necessity ends

/ Easements, Servitudes, Statute of Frauds

The Montana Supreme Court has affirmed a traditional rule of property law that express easements are presumed to be permanent even if they are created for reasons that later cease to exist. In this case, the easement was originally necessary to link the property to a public road. When such easements are not created expressly, courts imply them over remaining land of the grantor to ensure that properties do not become landlocked. Such easements traditionally last as long as the necessity lasts. Express easements however are permanent even if created to link a landlocked parcel to a public road and the necessity ends because another means of access (over land of a stranger to the title) becomes available. Woods v. Shannon, 344 P.3d 413, 2015 MT 8 (Mont. 2015).

Massachusetts state law prohibits covenants that could last forever

/ Real Estate Transactions, Servitudes

Case description here was previously posted but this is an update/correction. Massachusetts statutes limit covenants to 30 years if they contain no time limitation.  Mass Gen. Laws ch. 184, §23. There is an exception for covenants in transfers for public, charitable or religious purposes. Restrictions may be extended beyond thirty years only if, prior to the thirty year time has passed, a majority of the owners agrees to allow extensions for twenty years at a time and the extension is recorded. Mass. Gen. Laws ch. 184, §27(b). The statute allows further extensions on the same conditions, i.e, that a majority of the owners votes to extend the restrictions for another 20 years and that they record their agreement before the end of the 30 year period since the last extension. In Berger v. 2 Wyndcliff, LLC, 2015 WL 1775527 (Mass. Land Ct. 2015), the Massachusetts Land Court read these two statutes together to …

Massachusetts state law prohibits covenants that could last forever Read More »

District of Columbia prohibits noncompetition clause in sale of grocery store

/ Real Estate Transactions, Restraints on Alienation, Servitudes

The District of Columbia  passed legislation designed to prevent a grocery store owner from selling the property with a covenant that would have prevented the property from being used for grocery store purposes because this would deny residents in the neighborhood easy access to a grocery store. read article  The legislation is similar to the ruling of the New Jersey court in Davidson Bros, Inc. v. D. Katz & Sons, Inc., 643 A.2d 642 (N.J. Super. Ct. App. Div. 1994).

Scroll to Top