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.)

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