ILNews

Deed provisions are not vague, COA rules

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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.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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