Daily Development for
Thursday, October 15, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

EASEMENTS; TERMINATION: Servient tenant's right to terminate easement by constructing septic tank on dominant owner's parcel is an absolute right that can be exercised regardless of inconvenience to dominant owner - easements are property rights that are not subject to equitable "balancing."

Shiner v. Baita, 710 So.2d 711 (Fla.App. 1 Dist. 1998).

An easement reserved by grantor of a parcel created a right to continue to use and maintain a septic tank on the property transferred. The express language of the easement, however, provided that the servient owner could "determine later that connection to the septic tank interferes with the use of [the servient tenement] ... "Grantee, his successors or assigns shall have the right to pay the expenses necessary to construct a septic tank on the [dominant tenement] and then in that event, this right of hook-up to septic tank shall cease and be of no further force and effect." Later a holder of the servient tenement elected to relocate the septic tank, and the holder of the dominant tenant (the original grantor) objected because the relocation would prevent the dominant tenant from carrying out existing plans to build a trailer park on the property.

The trial court, characterizing the right to relocate the septic system as a "restrictive covenant," and ambiguous at that, found that the existence of the septic tank on the dominant parcel would "effectively deprive [the dominant tenant] of the use of her property." Therefore, the court concluded that the servient tenant could not relocate the tank even if the existing arrangement interfered with the servient owner's use.

On appeal: held: Reversed: The right held by the servient tenant is not ambiguous and is a property right that can be exercised as written.

Comment 1: The outcome is clearly correct, at least on the basis of the reported facts, and regardless of whether the right in question was an easement or servitude. The parties clearly contemplated that the servient owner could avoid the burden of the easement by paying the costs of relocation. That's what happened.

Comment 2: The court's dicta, however, is worthy of note, because it is uttered at a time when some scholars, through the Restatement of Servitudes, have attempted to argue that there is no difference between servitudes and easements, and that courts should apply the same interpretive rules to the two concepts. Included in these interpretive rules would be the various doctrines that permit courts to refuse to enforce servitudes for a variety of policy reasons as well as "changed circumstances."

The editor has consistently pointed out that the practice community views the rights conferred by easements to be in the nature of property rights, regardless of the doctrines that tend to undercut the enforceability of servitudes.

The court here specifically recognizes that distinction. It states:

"[W]e find that the reservation is not a restrictive covenant. Instead, the deed . . . created an easement. 'An easement of way is essentially an inherently legal interest in land, as distinguished from a restriction resulting from a restrictive covenant, which is but a creature of equity arising out of contract. . . [A]n easement implies an interest in the land, which is ordinarily created by a grant in a deed, and isoften permanent.'" (Citations omitted.)

The editor would have enforced the express language of the parties however the interest had been characterized, but welcomes this evidence that courts are unwilling to balance away the important concept of private property that is inherent in the grant of an easement.

EASEMENTS; CREATION; NECESSITY: Property owner is entitled to access easement by necessity even where separation from common grantor happened many decades before.

Walker v. Maddox, 708 So.2d 197 (Ala 1997).

The court's description of the facts is sketchy, but it is clear that the two parcels in question belonged to a common party more than three decades ago, and perhaps much longer than that. The alleged dominant parcel had been transferred a number of times since then, and finally a modern owner concluded that it desired to have access to its parcel to a public road across the adjacent parcel owned by successors to the original grantor.

The editor is not aware of case law that suggests that the fact that parcels were severed long before is relevant to whether an easement by necessity should be recognized. The only questions are whether a necessity existed at the time of severance and still exists today. And if, as the Florida court holds in the companion case here, easements are interests in land that are potentially permanent, then the continued existence of an easement by necessity certainly is consistent with doctrine. But the editor notes the case because of the potential "surprise factor." As easements by necessity arise regardless of evidence of usage on the ground and without any record evidence of the right, careful analysis is necessary to identify them.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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