Daily Development for Wednesday, September 19, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

SUBDIVISIONS; IMPLIED EASEMENTS; HOMEOWNERS ASSOCIATION: Owners of townhomes in a platted subdivision have the right to an easement by necessity over and use of subdivision common areas and improvements, even though a subsequent subdivision declaration removes the subject townhomes from the subdivision.

Post Hill Homeowners Assoc. v. Wheeler, 39 S.W.3d 508 (Mo. App. 2001)

The Post Hill subdivision plat was filed of record by its developer in 1987, and the entire subdivision was collateralized for the developer's mortgage. The land containing the foundation footprints of several of the townhomes subsequently constructed was later released from the mortgage, but the subdivision's common areas and improvements, including the townhomes' front doors and front yards and their air conditioning unit pads, remained collateralized.

One appellant then purchased her townhome in 1990; the other appellants came into ownership of their townhome in 1994. All subdivision improvements and common areas were complete and in place at the times when both owners purchased their townhomes Late in 1990, the mortgagee recorded a new subdivision declaration which left the constructed townhomes out of the subdivision. This left the townhomes located in the middle of the subdivision, marooned in amidst the subdivision improvements. It's not clear from the case why the local planning agency permitted this to happen.

The townhome owners utilized the common areas and improvements to access their properties. After paying subdivision dues to a homeowner's association in which they were not included or protected for a number of years, both owners stopped making the monthly payments demanded of them by the association, and this lawsuit ensued.

The trial court concluded: (i) the townhomes were not bound by the new declaration, (ii) the association had no maintenance responsibility for the subject townhomes, (iii) the homeowners had a personal license over the subdivision's common areas. The court awarded to the homeowners' association a judgment for past and future $150.00 monthly association fees from the owners. Both parties then appealed.

On the issue of access, the homeowners' association had admitted at the trial court level that the homeowners had rights to utilize a common driveway from the back of the townhomes and subdivision streets as easements by necessity, but claimed that the owners had no rights to use their front doors, patios, yards and other subdivision improvements.

On appeal, however, it argued that the homeowners should not have been granted any personal license or easement over any common areas, since they did have the ability to access their townhomes by the common back driveway.

The homeowners cross-appealed on several points, arguing that they should have been granted a permanent, appurtenant easement to utilize portions of their properties now declared to be subdivision, based upon the original subdivision plat which included their homes as a part of the subdivision. They further challenged the money judgment.

The Court analyzed the easement issue under the Missouri requirements for the finding of an implied easement: (a) prior common ownership of the property, now severed; (b) construction of visible easement by the common owner; (c) use of the easement prior to severance of title of a permanent nature; (d) easement is reasonably necessary for the use of the dominant estate.

It found that the facts of the case satisfied each requirement and that the association's prohibition of the homeowners use of such common areas as exiting and entering the townhomes' front doors improperly resctricted reasonably necessary uses. It awarded the homeowners an implied easement over the common elements surrounding their homes and over the streets in the subdivision. This implied easement did not extend, however, to other subdivision improvements including the subdivision's swimming pool.

On the issue of monthly association fees, the Court found that the $150.00 monthly fee award to the association was in excess both of what actual association members paid per month ($100.00) and was further inequitable due to the fact that the townhome owners did not enjoy the full range of subdivision improvements, like the swimming pool and insurance benefits enjoyed by association members, and reduced the award commensurately.

The court further analyzed the prospective judgment issued by the trial court, which ordered the owners to continue paying the $150.00 per month fees and found that the lower court's judgment exceeded the rules of quantum meruit, which, under Missouri law, is designed as compensation for past, not future performance. The homeowners' association would, therefore, be required to bring additional suits in the future if the townhome owners failed to make payments to the association.

Comment 1: The finding of a permanent implied easement is correct in implied easement grounds. Many other courts would have found such an easement in the common swimming pool as well, particularly in light of the fact that the excluded townhomes had been paying for it for a number of years. It might also have been able to find an implied easement in roads and other rights of way based upon the original subdivision plat. But such a finding became unnecessary in light of the fact that the developer, in building improvements in connection with the townhome, indicated even more conclusively that access rights were intended.

Comment 2: The finding of implied access easement rights is so obvious that one wonders why this issue wasn't permanently resolved at trial. But the issue of the assessments is another matter. It is perfectly oppropriate to require an easement holder to pay for any deterioration of the servient estate occasioned by its usage. Maybe the assessments are just a the court's effort to apportion such costs.

But the court seems to base its conclusion not on the easement holder's duty to protect the servient estate, but on a measure of quantum meruit for benefits conferred. There is some support for this notion in prior Missouri case law - one case required homeowners benefitted by a lake to pay for the maintenance of the dam despite the fact that there was no agreement. But it still a relatively novel theory.

Comment 3: The court's reluctance to require that the excluded townhome owners pay more than the other members of the association is certainly understandable. But the question remains whether they should be required to pay the same amount, since they were denied use of the swimming pool, exterior maintenance provided to association members, and casualty and liability insurance (although they likely would benefit from any casualty insurance on the common elements, and likely had little exposure to liability since they were not association members). Another DIRT DD, involving similar facts, found that it was appropriate to charge the regular association assessment to non-members, even if they did not enjoy all the benefits of the association, if the assessment was commensurate with the value of what they did receive. Okoboji Camp Owners Coop v. Carlson, 578 N.W.2d 652 (Iowa 1998), the DIRT DD for February 23, 1998

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