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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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