Daily Development for Wednesday, August 14, 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 easement by implication based upon established pre-existing use can arise in the context of a lease, notwithstanding an integration clause in the lease, and use can be established by tenant's usage during prior lease between the parties of the same property.

Dubin v. Robert Newhall Chesebrough Trust, 116 Cal. Rptr. 2d 872 (Cal. App. 2002)

Tenant originally held the property pursuant to an oral lease commencing in 1988. From the beginning, tenant alleged, tenant made use of a portion of landlord's adjacent property for access to his own property.

Although this access was helpful to tenant's business, it was not strictly necessary for access. In 1995, the parties executed a written lease, and did not mention in the lease the use of the adjacent property. The lease contained an integration clause, stating that all agreements of the parties were set forth in the writing, that there were no other express or implied terms to the lease, and that the lease could be amended only by another writing.

The court noted that California precedent has established that implied easements can be created in leases, and concluded that the preexisting use before 1995 created such an easement in the 1995 lease here. It mentioned the integration clause, but stated simply that a broad clause of this nature does not deny the existence of an implied easement. It didn't say why. It did note that the parties could, by specific language, provide that there was no implied easement created.

Comment 1: In reporting on this case in the California CEB Real Property Reporter Professor Roger Bernhardt notes that there is a difficulty finding a "pre-existing use" here because the landlord originally divided the estates (the leasehold and the adjacent property) in 1988, and there is no evidence of any use prior to that. The use in question arose after the division of the two estates, between 1988 and

1995. Nevertheless, Professor Bernhardt acknowledges that this technical issue should not stand in the way of carrying out the probable intent of the parties in the 1995 lease that uses existing at that time would be continued.

Comment 2: The case illustrates the short shrift commonly given by courts to integration clauses when the judges have decided that the parties likely did intend (or should be viewed as having intended) a particular provision. There likely are cases in which integration clauses really make a difference. In most situations, however, they are used primarily as boiler plate to reinforce a conclusion that the court has reached for other reasons, and do not drive the result.

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