Daily Development for Tuesday, February 11, 2003

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; PRESCRIPTION; REQUIREMENT OF HOSTILITY: Use and occupancy of property following an attempted parole gift of the property is not simply gratuitous, but instead is sufficiently adverse so as to allow an interest to commence to ripen from the commencement date of such usage into a claim of adverse possession.

Paxson v. Glovitz, 50 P.3d 420 (Ariz. App. 2002).

In 1979, a predecessor to Glovitz constructed a driveway across his property and agreed that he would grant an an easement for that driveway. There is no dispute today as to that intent to create an easement. But despite this agreement, no easement was never recorded and no written grant of easement has ever been produced. In 1998, Glovitz bought the property, having been told that during the previous fourteen years the driveway had been used by members of the public and visitors to the home and residents of the house now owned by Paxson. The party selling to Glovitz believed that the easement had been used as a matter of right

When Paxson acquired her property in 1995, she was told that the paved driveway was for her use and that of the general public.

In September of 2000, Glovitz began to construct a fence to block access to the driveway, and Paxson sought an injunction to stop construction of the fence. The trial court did not grant the injunction and held that, per Glovitz's argument, the undisputed intention to create the easement rendered the use over the preceding years permissive and rebutted the presumption of hostility.

Astonishingly , the court also awarded Rule 11 attorney's fees of $38,000 against Paxson.

Upon appeal, the Arizona Court of Appeals soundly reversed.

It noted that the intent of the parties in 1979 was to create a permanent easement which would not have been permissive or subject to revocation. Therefore, Glovitz's argument that the use was permissive runs contrary to the intent of the parties. Thus, there was an oral or parole grant of title underlying to the real property, which while unenforceable because of the Statute of Frauds, will, when coupled with possession, give rise to a claim of an adverse possession. The Court of Appeals noted that the Supreme Court of Arizona in another case had concluded that making a parole gift of property, vacating it, and permitting the donee to remain for at least ten years was no less adverse than if a claimant had taken possession of the property at gunpoint. Since an intended but imperfect transfer of real property can inaugurate an prescriptive period, it was inappropriate to grant summary judgment to Glovitz. Therefore, the court reversed and remanded.

Comment 1: This case does involve an interpretation of law, so it is relevant precedent, but it is unfortunate that the case had to have been decided at all. At least from the way that this case is reported, the principle is quite an obvious one, and well established. And Rule 11 fees to boot!!! How could the trial judge have been so wrong?

Comment 2: The case is also noteworthy for its heavy reliance on the Restatement of Servitudes, In fact, the court noted that "in the absence of contrary pr3ecedent, Arizona courts look to the Restatement.

Although the editor is pleased that the Restatement was useful in resolving this issue, and has no quarrel with the Restatement Sections in question, it is important to note that many parts of the Restatement of Servitudes, as well as other Restatements, are "aspirational," and do not in fact "restate" existing law. Courts might be a bit more cautious in "buying in."