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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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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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