Cases in Real Estate
is a weekly update on real estate law, with legal principles illustrated and
explained by lawsuits from around the country. The topics are wide-ranging for
appeal to a broad spectrum of readers including lawyers, homeowners, investors
and the general public. Andrea Lee Negroni, a Washington DC
attorney and legal writer with 25 years of experience in financial services and
mortgage law, contributes the case summaries.
Real Cases in Real Estate will learn and be entertained by lawsuits
involving nuisance, trespass, zoning violations, deed restrictions, title
insurance, public utilities, mechanics liens, construction defects, adverse
possession, foreclosure and eviction, divorce and marital property rights,
tenants' rights, and more. Real Cases in Real Estate uncovers the
unpredictable, amusing, and sometimes outrageous disputes between next-door
neighbors, contractors and homeowners, condo boards and residents, real estate
brokers and homebuyers, and zoning administrators and developers.
cited case summary highlights the essential law of the case and explains the
principal legal theories and concepts relevant to the outcome. Plain language
treatment makes Real Cases in Real Estate accessible to lawyers and
follow real estate law professionally or as a hobby, you'll find something new
and useful every week in Real Cases in Real Estate.
for the Week of October 29th, 2012
Neighbors' Driveway Agreement is
a Personal License, Not a Permanent Easement
The Pelletiers and Aphrodite
Laureanno are neighbors in Tiverton, Rhode Island. Laureanno bought her
property in 1997. The Pelletiers acquired theirs in 1989.
The Pelletiers had a written
agreement with Laureanno's predecessor in interest, permitting them to
construct a driveway of 10 feet by 20 feet and plant and maintain shrubs two to
three feet high. They were permitted to park one vehicle in this driveway with
their neighbors maintaining right of full access. The driveway agreement was
recorded in the town's evidence records. The Pelletiers used this driveway and
maintained the shrubs for about 20 years.
When Laureanno bought her
property in 1997, the deed she received did not make note of the driveway
agreement. Laureanno became aware of the agreement while doing an assessment
search, and notified the Pelletiers that she would not support their
application for a dock expansion unless they acknowledged (1) that the driveway
was partly located on her lot, and (2) that they would remove their
improvements upon 60 days' notice from Laureanno. Two years later, Laureanno
put up a fence along the lot line which partitioned the driveway, rendering it
useless. The Pelletiers filed a complaint, claiming the driveway agreement was
an easement that ran with the land.
A title attorney testified about
whether the agreement would be considered a document coupled with a grant or a
personal agreement. The trial justice found that the driveway agreement was a
freely revocable license without extrinsic credible evidence of the parties' intent
to create an easement. The Supreme Court reviewed the requirements for the
creation of an easement by express grant, which requires "a writing containing
plain and direct language evincing the grantor's intent to create a right in
the nature of an easement rather than a license." In considering the driveway
agreement, the court found the property where the Pelletier's vehicle could be
parked was not specifically described-other than by a statement identifying the
"northeasterly portion" of the land, so the alleged easement area was unclear.
Therefore, the driveway agreement fell short of demonstrating an intent to
create a permanent interest that runs with the land. Moreover, the license to
park on the property terminated when the land affected passed into the hands of
the grantee of the licensor, Ms. Laureanno.
The Supreme Court affirmed the judgment
of the Superior Court dismissing the Pelletiers' complaint.
Pelletier v. Laureanno,
46 A.3d 28, 2012 R.I. LEXIS 98 (2012) [enhanced version available to lexis.com subscribers].
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