Daily Development for Monday, November 22, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

EASEMENTS; CREATION; IMPLICATION: Where two separate multi-story buildings were once under common ownership, then subsequently sold to different parties, and where the elevator equipment room for one of the buildings was located in the other building, an implied easement was created at the time of severance to allow the owner of the adjacent building to access the elevator equipment room.

Hanna v. Robinson, 2004 WL 1059742 (Ark.Ct.App.).

Two buildings were joined by an above-ground connection that included a hallway and several rooms. The buildings and were once under common ownership, but later owner sold the south building to Robinson. Robinson’s deed included only the building, and did not mention the connecting passageway or rooms. Prior to the sale of the south building, the owner of the two buildings had rented the south building to another, who had used the passageway and the rooms, with the permission of the owner. Robinson did the same, although he received no specific permission and the passageway was not mentioned in his deed. He used the rooms and the passageway for storage space and office use.

In addition, the north building contained an elevator equipment room, which was used for the maintenance and repair of the elevator in the south building. This elevator was valuable to the south building, as it made the second floor “handicapped accessible.” The tenant who occupied the building prior to its sale to Robinson had a key to the equipment room, and Robinson apparently had a key as well, and both accessed that room. Again, however, there is no indication that Robinson was given any express permission or that he got the key from the former owner.

Ultimately, Hanna bought the north building. Thereafter, a dispute arose concerning Robinson’s right to use the rooms in the passageway, and Robinson brought suit seeking to establish implied easements to various rooms located in the passageway, and also to the elevator equipment room. The Court held that Robinson’s use of the exceeded the scope of what is normally considered an easement and was inconsistent with Hanna’s possessory ownership interest and therefore denied Robinson’s request seeking an easement in such rooms.

As to the first floor elevator equipment room located in Hanna’s building, Hanna had equal access to the room (although no particular use for it), and therefore Robinson was not claiming a possessory interest there. The Court found that access ro and use of the room by the occupant of the south building had been was reasonably necessary to the use and enjoyment of that building and had already been established as a continuing use at the time the original owner of both buildings sold to Robinson and effected a severance of parcels. Therefore Robinson had an implied easement to access and use the elevator equipment room.

Comment 1: Law professors may find this case a valuable teaching tool because the facts are relatively simple and the line is drawn between possessory uses and non possessory uses. The point that only non-possessory uses can give rise to an easement by implication one is an important one, but the editor has never seen a case precisely on this point.

Comment 2: For another twist on the question of the non-possessory nature of easements, see Silacci v. Abramson, 53 Cal. Rptr. 2d 37 (Cal. App. 1996), the DIRT DD for 9/25/96 (fencing an area as part of one's back yard for the prescriptive period does not establish a prescriptive easement, and must be evaluated as a claim of adverse possession. California has very different and more onerous requirements for adverse possession.)

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.


Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 15 messages per work day.

Daily Developments are posted every work day. To subscribe, send the message

subscribe Dirt [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription, send the message signoff DIRT to the address:

listserv@listserv.umkc.edu

for information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address:

listserv@listserv.umkc.edu

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:
http://cctr.umkc.edu/dept/dirt/

*************************************

To unsubscribe from this discussion list, send an email to dirt-dd-unsubscribe-request@mail.abanet.org or use the following link:
http://w3.abanet.org/abanet/common/email/listserv/listcommands.cfm?parm=unsubscribe&LISTGROUP=dirt-dd
If you have any problems, please contact the list owner at dirt-dd-request@mail.abanet.org.