Daily Development for Wednesday, March 6, 2002

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

EASEMENTS; CREATION; IMPLICATION: An implied easement can arise where reasonably necessity exists at the time that a lease is entered into, even when the lease contains an integration clause stating that there are no implied understandings not stated on the face of the lease.

Dubin v. Chesebrough Trust, No. B146020, 2002 WL 264837 (Cal. App. 2/26/02)

Tenant leased property in 1988. The court does not indicate whether the 1988 lease was written or oral, or for what term, but it seems clear that there was no writing containing any mention of any easement rights. Nevertheless, Tenant alleged, the parties intended that tenant have access to his property across adjacent vacant land owned by landlord. Although tenant had alternate access to the leased site, the access across the vacant land accommodated the large vehicles that tenant dealt with in his truck and RV maintenance business.

The roadway across the vacant land had "crash posts" on it that narrowed the access area, and sometime in 1988, allegedly in connection with the lease to Tenant, Landlord removed those posts.

In 1995, shortly after Landlord's death, Tenant entered into a formal five year lease with a trust apparently established as part of Landlord's estate. This form lease did not mention any easement rights, and the property description did not mention "appurtenances." It contained an "integration clause" that stated: "This lease contains all agreements of the parties with respect to any matter mentioned herein."

On or about the commencement date of the lease, and after it was executed, the trust reinstalled the crash posts, thus destroying practical access for Tenant's business across the vacant lant. Tenant continued to have alternate access at another location, but this alternate access did not accommodate large vehicles.

Tenant filed a blunderbuss complaint alleging all kinds of easements - by prescription, necessity, etc.

The court concluded that there were insufficient allegations to support an easement by prescription or an easement by necessity, but concluded that tenant had alleged sufficient facts to survive a motion to dismiss on the question of easement by implication. The court noted that it was well established that a general integration clause, even one more broadly worded than the one in this case, is insufficient to negate the existence of an implied easement. It acknowledged that parties can specifically provide that no easements are implied in a grant or lease, and that such language would negate an implied easement that would otherwise exist. But the court indicated that the established law requires quite clear and pointed language to bar the implication.

As to the support for the implied easement itself, the court noted that there was clearly reasonable necessity here and that, prior to the 1995 lease, the vacant land had been used for a purpose benefitting the leased property. It also commented that, alternatively, an implied lease might arise even when there was no preexisting use if the circumstances were clear that the parties intended that access be provided.

Comment 1: The case states a legal principle that most lawyers probably already know, although they sometimes forget. If parcels have been placed in a dominant/servient relationship, the court will conclude that when possession of the two parcels is divided into different parties, the relationship will be deemed to continue unless the transfer documents clearly indicate otherwise. But there is not a lot of authority addressing specifically the impact (or lack of impact) or an integration clause, and the editor thought that the case was worth noting for that reason.

Comment 2: Further, as dicta, the court states that the easement can arise from evidence of the parties' intention as well as from the existence of a pre-existing use. There is other authority supporting this proposition, but it should be noted that such a contention flies directly in the fact of the Statute of Frauds, which requires that the parties agreements in connection with a transfer of a real property interest should be put into writing. It is one thing to say that the presence of an already existing "quasi easement" establishes an appurtenance that arises upon severance

- this analysis can be viewed as a characterization of the overall transfer of property rights. It is quite another to say that the parties' unstated intentions can be raised to establish a transfer of property rights outside the Statute of Frauds.

Comment 3: In any event, as a practice tip, it would seem that it might be wise to pull out the boiler plate integration clause and specifically negate the existence of any implied easements. You might want to throw in a reference to other implied servitudes as well. Of course, if you do this, remember that such implications can run both ways. Sometimes a landlord may want to make a claim that an implied right exists as an exception to the possession transferred to the tenant under a lease. So if you're going to negate any such implications, you'd better be prepared to live with the results.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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