By David J. Duncan, Scannell Properties
In a dispute between neighbors, the Indiana Court of Appeals affirmed a private property owner had to allow part of his land to be used to give access to a tract of land owned by a business, concluding that an easement of necessity exists over the servient estate for the benefit of the dominant estate. However, in reaching its decision, the appellate court determined as a matter of first impression that an easement recorded at a time when a landowner owned both the dominant and servient estates had no legal effect because one cannot have an easement over land he already owns.
The pertinent facts and dates of this case are as follows:
- On 10/24/2003, Howell acquired Parcel 7.05 identified below (the “Servient Estate”);
- 11/3/2003, Howell acquire Parcel 2.02 identified below (the “Dominant Estate”);
- The Servient Estate and Dominant Estate are adjacent to one another;
- When the Dominant Estate was acquired, the only access to a public ROW was over the Servient Estate already owned by Howell;
- On 06/23/2008, Howell granted an Easement to himself over the Servient Estate to allow access to the Dominant Estate in connection with a mortgage loan Howell secured on the on the Dominant Estate;
- One 07/23/2008, the a mortgage was recorded against the Dominant Estate in favor of Old Capital Mortgage;
- On 03/27/2009 Collins purchased the Servient Estate at a sheriff’s sale;
- On 05/11/2012, Metro Real Estate Services, LLC (“Metro”) acquired the Dominant Estate at a sheriff’s sale;
- Collins subsequently objected to Metro’s use of the Easement over the Servient Estate and in January 2014, Collins initiated a compliant to quite title.
Not finding any dispositive Indiana decisions on point, the appellate court cited a decision by the Missouri Court of Appeals for the holding that a developer’s attempt “to create an easement by deed when it owned both the purported dominant and servient estates was ineffective as a matter of law.” Woodling v. Polk, 473 S.W.3d at 236 (Mo. Ct. App. 2015).
The decision in this case to invalidate an easement despite the intent stated in the easement instrument is concerning in light of the common practice by land developers (and their counsel) granting common easements benefiting a platted subdivision by way of a dedication of reciprocal easement. This dedication instrument is often prepared and recorded at a time when the developer owns both the dominant and servient estates intended to be encumbered by the common easements. In fact, in my experience, some local jurisdictions having authority over projects will mandate that the common easements be recorded prior to granting site plan approval and/or issuing building permits on a project site at a time when the developer necessarily had unity of title to both the servient and dominant estates. This decision has the potential to invalidate many common easements created by developers in both the residential and commercial/industrial settings.
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