By: dmc-admin//November 26, 2007//
A purchaser of real property has constructive notice that the land may be subject to an easement, if a driveway runs through it, even if the easement is not recorded, the Wisconsin Court of Appeals held on Nov. 20.
In 2002, Judith and Matthew Anderson purchased property on Lake Sissabagama in Sawyer County. The property consists of a strip 80 feet wide on the lake and running back from the lake for a distance of roughly 170 feet where it meets a larger parcel.
A condominium development is located on both sides of the strip — six units on one side and four units on the other side.
Prior to 1984, all the land was owned as a single parcel and operated as a resort. In 1984, the owners recorded a declaration of condominium ownership. The declaration created the 10 condominium units and included a number of easements.
One easement corresponded to a driveway running through the properties; one related to utilities; and the third created a “non-exclusive right for the use of … the entire beach area in front of the lodge building, not part of this condominium development, for the benefit of the unit Owners to pass and repass, sit upon, walk on and use as though it were part of the Condominium.”
Although the plat was properly recorded, the declaration containing the easements was not; thus, when the Andersons bought the middle parcel, they were advised by their broker and title insurer that there were no easements, and they could shut down the driveway.
When the secretary of the condominium association objected, the Andersons filed suit, seeking an order voiding the easements. Sawyer County Circuit Court Judge John P. Anderson held the easements were enforceable, and the Andersons appealed.
The court of appeals affirmed in part, and reversed in part, in a decision by Judge Gregory A. Peterson.
Merger of Title
The court first rejected the Andersons’ claims that the easements are void under the doctrine of merger of title. Under the doctrine, if the same person becomes owner of both an easement and the easement’s servient estate, the easement is extinguished.
The Andersons argued that the easement never existed, because, when it was created, the original owners still owned the entire parcel.
However, the court concluded that the easements did not come into existence until the condominium units were sold. The court reasoned that the Andersons’ argument, taken to its logical conclusion, would void all rights set out in condominium declarations.
Notice
The court next held that the Andersons were not good faith purchasers without notice of the easements.
Under sec. 706.09(2)(a), a purchaser has constructive notice if “due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest” or if “such use or occupancy is actual, visible, open and notorious….”
The circuit court held, and the court of appeals agreed that the driveway across the property was “open, notorious, and overtly visible,” and thus the Andersons had constructive notice of the easement.
The Andersons relied on an 1892 case, Taggart v. Warner, 83 Wis. 1, 53 N.W. 33 (1892), in which the court held that a wagon trail crossing property, without more, did not create constructive notice.
However, the court found Taggart was no longer valid law, because it predates sec. 706.09. The court acknowledged that the Andersons may be considered good faith purchasers under the interpretation of Taggart, but held they cannot be deemed to lack notice under the statute.
The Andersons argued that sec. 706.09 only applies to prescriptive easements, but not improperly recorded easements, but the court concluded that the plain language of the statute included improperly record easements.
The court declined to consider legislative history, concluding that it would be contrary to the plain language of the statute.
Statute of Frauds
The Andersons were successful on one argument, however — that the beach easement is too indefinite to satisfy the statute of frauds.
The condominium owners conceded, and the court found, that the expression “the entire beach area in front of the lodge building” could refer to the Andersons’ entire parcel, or merely the area immediately adjacent to the water.
The court thus found the easement was not definite enough, and reversed the circuit courts’ holding that the easement was valid.
Analysis
The court’s very terse discussion of the beach easement should be a caution to attorneys drafting easements with the intent of permitting passage over and use of beach areas.
The beach easement in this case provided for the “non-exclusive right for the use of … the entire beach area in front of the lodge building, not part of this condominium development, for the benefit of the unit Owners to pass and repass, sit upon, walk on and use as though it were part of the Condominium.”
In most cases, a beach easement such as this cannot reasonably be interpreted to include an entire parcel. Reasonable people would interpret the provision in this case to allow use of just the beach area. Wherever grass, trees, shrubbery, or perhaps a rock retaining wall, or other dropoff, begins, reasonable people would conclude the easement ends.
Nevertheless, the owners of the condominium units conceded that this language could refer to the entire parcel owned by the Andersons. Such an interpretation would seem to be absurd, especially since it would render the driveway easement redundant; if the beach access allows passage over the whole property, there would be no reason to have a separate easement allowing egress over the driveway, which runs between the lodge building and the beach.
In light of the concession, and the court’s acceptance of it, careless drafting could result in what happened here — because there existed an interpretation, albeit an implausible one, that the easement is broader than intended, the easement that was intended fails.
Beach easements are necessarily more difficult to draft than others, because the shoreline is ever-changing. Nevertheless, as the Texas Court of Appeals noted in a similar case involving beach access, “The fact that an easement is uncertain does not authorize the court to completely ignore the right granted if the easement is susceptible to a reasonable construction as to its true intent and meaning.” West Beach Marina, Ltd., v. Erdeljac, 94 S.W.3d 248, 264 (Tex.App.-Austin, 2002).
In light of this decision, that statement may not be an accurate statement of the law in Wisconsin. Certain language from the easement in Erdeljac can be employed to increase the likelihood that a beach easement will be upheld.
For example, the easement in Erdeljac contained a hand-sketched map of the easement’s extent. Id., 94 S.W.3d at 266. It would be wise when drafting beach easements in the future, to do the same.
Language in the nature of, “a width no less than X feet and no greater than Y feet,” that roughly correlates to the usual size of the beach area could also prevent an easement from being held not reasonably certain enough. Id.