Terry Weisheit Rental Properties, LLC v. David Grace, LLC (IN)

Summary: Deed provisions that established mutual use and maintenance of the parking areas and sharing of expenses to maintain the party wall between the grantor and grantee created an affirmative covenant that ran with the land, not a prescriptive easement.


Terry Weisheit Rental Properties, LLC v. David Grace, LLC, 12 N.E.3d 930 (Ind. App. 2014), rehearing denied.


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Facts: Jerome Kerstein (“Kerstein”) owned a plot of land, which he subdivided in 1981 by selling a portion to Lawrence and Norma Steffen (“the Steffens”). The Steffens owned plots 20 and 21a while Kerstein owned plots 21b, 22 and 23. A firewall separated the property line between the Steffens' land located on the north side of the wall and Kerstein's land located on the south side of the wall. Each plot included paved parking and driving areas. Plots 21a and 21b included driveway access to local roads. The Steffens' deed included a provision dictating mutual use and maintenance of the parking areas and the equal sharing of expenses of maintaining the party wall.

In 1985, Terry Weisheit (‘Weisheit’) personally purchased plots 21b, 22, and 23 from Kerstein. In 2003, he transferred ownership of these plots to his business. Weisheit's deed did not include any provisions concerning mutual use and maintenance of the wall and common areas, but both the Steffens' and Weisheit’s businesses received deliveries that required the deliverers to cross onto both sides of the property to unload.

In 2012, following the death of her husband, Norma Steffens sold the Steffens' property to David Grace (‘Grace’). Grace's deed included a provision virtually identical to that in the Steffens' deed concerning use and maintenance of common areas and sharing costs for maintaining the party wall. Grace leased the property to Dance Central. Dance Central customers parked in spaces that belonged to Grace, but also parked in parts of the lots owned by Weisheit. Conflicts regarding the customers' use of the lots arose between Weisheit and Dance Central. Weisheit eventually parked a box truck just outside the property line between lots 21a and 21b. The truck did not cross over onto Grace’s property, but caused customers to have difficulty parking in front of Dance Central.

On January 8, 2013, Grace and Dance Central, through counsel, sent a letter to Weisheit requesting that Weisheit cease blocking access to Dance Central's parking spaces. Weisheit did not comply and a suit followed. The trial court found a prescriptive easement existed as to all parties for the mutual use of plots 21a and 21b. The trial court did not find an express easement, as argued by Grace and Dance Central, because the essential provisions of the deed were vague.


Holding: Reversed. On appeal, Weisheit argued that the trial court erred in finding the existence of a prescriptive easement favoring Grace and Dance Central's use of plot 21b, and stated that even if an easement did exist, the trial court's order erroneously extended the scope of the easement by implication. Grace and Dance Central on cross-appeal, contended that the easement should be expanded to include all parking areas and the driveway for ingress and egress.

First, the appellate court determined that the deed provisions were not vague, because based on the language of the Steffens' and Grace’s deeds, the intent of the provisions was clear even if it was not expressly stated. Moreover, the appellate court stated that the deed provisions did not create an easement, because they lacked any clearly designated dominant or servient estate.

Next, the appellate court determined that the deed provisions created an affirmative covenant because they established a set of reciprocal duties and rights regarding the driving and parking areas and for maintenance of the party wall. Essentially, the deed provisions established mutual obligations between the grantor and grantee.

Finally, the appellate court determined that the affirmative covenant created by the deed provisions ran with the land because the facts established that (1) the grantor and grantees intended it to run, (2) the covenant touches and concerns the land, and (3) there is privity of estate between subsequent grantees of the original grantor and grantees.


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By: ATG Underwriting Department | Posted on: Mon, 04/06/2015 - 10:00am