ILNews

Deed provisions are not vague, COA rules

Back to TopCommentsE-mailPrintBookmark and Share

Finding that the trial court erred in construing the provision of a plaintiff’s deed in a dispute over use of parking areas, the Indiana Court of Appeals reversed the finding of the existence of a prescriptive easement allowing dance academy customers to use portions of land owned by a neighboring company for ingress and egress from the academy’s property.

Issues arose when David Grace purchased two lots and leased the property next to Weisheit’s construction business to Dance Central Academy. The dance customers parked in the dance academy’s spaces as well as some spaces that belonged to parts of the lots owned by Weisheit. This led to conflicts between Weisheit and Dance Central’s owners and customers over the course of several months. Weisheit then parked a box truck just south of the property line, making it difficult for customers to park in front of the dance studio.

The parties went to court, where the judge ruled that a prescriptive easement existed as to all parties for the mutual use of plot 21a, owned by Grace, and plot 21b, owned by Weisheit. The trial court also ruled that the provision in Grace’s deed did not create an express easement as to use of plots 21b, 22 and 23 – owned by Weisheit. The court also denied Weisheit’s counterclaim for nuisance.

The Court of Appeals reversed, concluding that the trial court erred as a matter of law in interpreting the deed provisions and finding them to be vague.

The judges noted how the previous owners of the land in question needed to use portions of the other’s land in order to receive deliveries involving big trucks. The 1981 deed provision established mutual benefits for the original owners, namely, the use of driving and parking areas that were divided in the 1981 conveyance of part of the land to the owner prior to Weisheit. It also includes language establishing mutual obligations for maintenance of those commonly used parts of the parking and driving areas and the party wall.

“None of this, we think, is vague,” wrote Judge L. Mark Bailey in Terry Weisheit Rental Properties, LLC v. David Grace, LLC and Dance Central Academy, LLC, 19A05-1310-PL-488.

The judges construed the nature of the deed provisions and found they establish mutual obligations between the original grantor and grantee for use and maintenance of plots 20, 21a, 21b and 22 and require them to share the costs of maintenance for the parking and driving areas and the party wall. The deed provisions are covenants that the court found to be affirmative, and that the land use covenants run with the land and Grace and Weisheit alike may benefit from and are burdened by the deed provisions.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

ADVERTISEMENT