Case of the Day – Thursday, June 19, 2025

Posted on June 19, 2025 by TLRoot tagged.

INEXACTINESS

It’s been a long time, 46 years more or less since law school graduation. Ah, that was a time! For a sweet few months in the spring of 1977, I knew absolutely everything about the law. All anyone had to do was ask me (and sometimes they didn’t even need to ask: I’d just volunteer).

Alas, by the middle of June, a week after commencement, I was cramming for the bar exam and finding out I did not know so much after all. It’s been all downhill since then. The longer I go, the more I’m shocked to discover what I either no longer know or never knew to begin with. Beyond what lawyers should know, many clients are shocked that many learned counselors aren’t as learned as clients imagine lawyers should be, such as being to recite all 50 titles (plus appendices) of the United States Code or recall the dissent in a case decided in Pocatello, Idaho, 42 years ago.

Lawyers get called on all the time to be knowledgeable and thorough in many different areas of the law. That’s why there are law books. And (because we’re over two decades into the 21st Century) databases. And even ChatGPT (if you don’t mind bogus cases containing bogus holdings, but be warned that the judges don’t like it much).

Today’s case reminds us why it’s a good idea for all lawyers, including the most seasoned practitioners, to look things up and review the basics whenever he or she tackles some task not performed that often. And not on ChatGPT, either.

Richard Stafursky and his siblings were squabbling over inherited land. They settled it by Richard taking one chunk of land, and his brother and sister together owning an adjacent one. Richard gave his siblings an easement to cut grass and brush on a 3-acre portion of his land, provided the brush they cut was under 2” in diameter. He had a lawyer draft the easement into the deed, and then he conveyed his land — including the easement — to some tree-hugging nonprofit organization of which he was chairman.

Then the battle began. The tree-hugging group wanted to return the whole tract to nature and told Richard’s siblings they couldn’t cut down any trees when they cut brush. What’s more, the group transplanted native trees in the meadow that was subject to the easement. Finally, the nonprofit sued to get the court to issue a ruling as to what the easement meant.

How’d the lawyer screw it up? Easy. He thought he remembered how to write an easement. Easy-peasy, right? Write down the restriction, what the subservient estate holder was allowed to do or had to put up with. Then bill the client. And take a long lunch.

Had counsel refreshed his recollection of easement law, he would have recalled the nuance. Easements are driven by purpose. That’s black-letter law in Massachusetts. And nothing in the ‘cut no 2″-plus brush’ easement language written into the deed suggested a purpose.

No one seemed to be able to agree on why Richard had given the easement to his brother and sister. When Richard was hauled into court as a witness, he claimed that the easement was just an artifice to help sell the property. The trial court rejected his explanation as meaningless at best and a fraud at worst. Then Richard took a different tack, claiming there was no purpose to the easement whatsoever. The brother and sister said the purpose was to preserve their view. The lower court had to find some purpose in order to enforce the easement and thus decided the brother and sister’s explanation was the one that made the most sense.

The Massachusetts Court of Appeals upheld the decision, having no problem with the notion that the easement was a “view easement” (despite the apparent fact that Richard, who was trying to stick it to his siblings, denied the easement had a purpose at all). Clearly, the easement’s lack of explanation as to its purpose and its unusual provisions about brush under 2” in diameter left the court in a position of having to provide much more guidance and interpretation than should have been necessary. In fact, had the easement been properly drafted, there would probably have been no lawsuit to begin with (assuming, of course, Richard had not wanted to stir things up in some other mischievous manner).

As the lower court quite rightly noted, all of the problems could have been avoided if the lawyer drafting the easement had shown as much care in stating the reason for the easement as he did in describing the limitations on what could be done.

World Species List-Natural Features Registry Institute v. Reading, 75 Mass.App.Ct. 302, 913 N.E.2d 925 (Ct.App. Mass. 2009) Richard Stafursky, the previous owner of some property that included a 3-acre tract, granted his brother-in-law and sister, Jim and Sandra Reading — the owners of a next-door parcel — an easement permitting them “to enter on to the [three-acre] parcel [subject to the easement] for the sole purpose of cutting grass and brush no larger than two (2) inches in diameter when measured one (1) foot from the ground, excluding any cutting of grass and brush on wooden land as shown on said survey of the three-acre easement.” At the time the easement was granted, the 3-acre parcel consisted of two open meadows with a wooded area that was not to be cut in the middle. Richard deeded his land to the plaintiff Institute, a nature conservancy trust that he founded, which intended the return the whole large tract to its natural conditions.

Shortly thereafter, the Institute demanded that the Readings give advance notice before exercising the easement, that the neighbors not cut any trees (even those within the size limitation) and that the neighbors not remove any trees the Institute had transplanted to the area. The Institute contended that the sole purpose of the easement was to enable Richard to sell his property. The neighbors replied that the purpose of the easement was to enhance their view and that they had acted within their rights as beneficiaries of the easement by cutting within the cutting area to maintain that view, and that the plaintiff does not have the right to transplant trees or other vegetation into the cutting area.

Held: The easement was a “view easement” and the neighbors had the right to exercise it. The Court said that “we do not consider it dispositive that the easement language here does not explicitly state that the purpose of the right to cut vegetation is to permit the benefitted landowner to enjoy the view. The purpose and effect of the view easements are not simply to limit the uses that the plaintiffs can make of their own property. Rather, the view easements here have taken on the defining characteristics of an affirmative easement by conferring on the defendants the right to enter and use land in the possession of another, and we conclude that this fact is dispositive.”

The Court noted that the limitation on cutting only grass and brush that was less than two inches in diameter was consistent with the circumstances of the grant of the easement, “representing a compromise between the desired uses of the easement property – as an open meadow for a view on the one hand and the potential restoration to a natural landscape on the other.”

The Court put a stop to World Species’ attempts to regulate the easement. First, the Court held that the word “brush” in the easement language included small trees. World Species could not stop the cutting of trees, nor could it defeat the easement by transplanting trees with a trunk larger than 2 inches. The Court said to allow this “conduct is inconsistent with Readings’ view easement. The easement area would become reforested if World Species were permitted to transplant trees of that size onto the easement area as such trees would exceed the dimensions of vegetation that [the Readings were] allowed to cut, thereby creating a condition that would eventually cause the view to disappear.”

The Court did agree with the Land Court judge that the easement grant had to be exercised regularly. That is, the Court said, the “Readings must use it or lose it. If [the Readings] do not regularly cut vegetation, small trees existing on the easement area will grow until they exceed two inches in diameter when measured one foot above the ground and he will no longer be permitted to cut such vegetation. Over time, the land will become reforested and the Readings will lose the view benefit… derived from the easement.”

– Tom Root

Case of the Day – Wednesday, May 7, 2025

Posted on May 7, 2025 by TLRoot tagged.

HERE, LET ME FIX THAT

Residential developments often have deed restrictions, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block the neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When, several years later, those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable.

Ms. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners’ association. Instead, she sued them, and her lawyer found a hook.

The current restriction on trees had been adopted in 1993, a few years before Gail moved in. It provided that no trees, hedges, shrubbery, plantings, or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. But a year after the restriction was adopted, the association’s lawyer decided to rewrite it just a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.”

You know, counsel was just trying to be helpful, to make it a little clearer. The only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

The Court concluded that the evidence showed that the association’s lawyer never intended that his rewrite change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good-faith confusion as much as bad-faith avoidance. And he should have imagined that the non-trimmer would hire a mouthpiece who would run a chainsaw through his “helpful” rewrite.

More to the point, why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? The lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs.

It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Ore. App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings, or fencing over six feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by a vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings, or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

The Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.

– Tom Root

Case of the Day – Thursday, November 7, 2024

Posted on November 7, 2024 by TLRoot tagged.

YOU’RE BLOCKING THE VIEW I MAY SOMEDAY HAVE

From the annals of neighborly chutzpah comes this tale of unmitigated gall. (Is there ever mitigated gall? Perhaps a question for another time…)

Implied view easements get a deservedly tough rap in this country. You can grant such a view easement to a neighbor, and the courts will enforce it. But that is hardly ever the case, except in planned communities, where restrictive covenants control from the color of your house to whether you can have kids that aren’t cute.

Usually, it is a case where the neighbors have an expectation that nothing will ever change once they buy their property. Trees won’t grow, new buildings won’t go up, a new Dollar General won’t be built across the street… When life goes on, making a mockery of their expectations, they respond with a lawsuit alleging that life is spoiling the view.

But today’s case takes the cake. Here, the neighbors were accused of spoiling the view that the plaintiffs anticipated someday having if they ever got around to building a patio from which to have a view. In other words, you can’t have it because I might want it someday.

There’s a good reason (besides slamming down uppity neighbors) such implied easements are never found to exist. Imagine the confusion. A buyer could identify all of the written easements on the land, but he or she could never know what unwritten easements in favor of presumptuous neighbors might be lurking out there. And the lenders could not be sure, either. Pretty soon, getting financing would be much tougher, finding willing buyers would be much more complex, and before you know it, progress grinds to a halt.

It may seem crass and commercial, but recall the real estate market of 15 years ago. No one is served by a return to that.

Kruger v. Shramek, 5 Neb.App. 802 (Neb.App. 1997). Eric and Ann Kruger bought a lot in the Eagle Run West subdivision of Omaha in late 1991. Two years later, John and Tammy Shramek bout the lot next door. The Krugers preferred to savor the thought of building a house, while the Shrameks – a pair of go-getters – got right on it.

Both lots abut the picturesque 18th hole of the Champions Golf Course. When the Shrameks started building, they reviewed their plans with the subdivision developer, who approved them. The Krugers were another story. They complained about a change in water flow caused by the Shramek’s regrading. They complained about the fence. Mostly, they complained that the Shramek’s landscaping would ruin the view of the 18th hole from their yet-to-be-constructed patio.

The Shrameks tried to accommodate their would-be neighbors. They moved their downspouts underground and ran them to the golf course. They removed a berm, transplanted trees closer to their house, and removed some of the fill dirt near the property line between their lot and the Krugers’ place. Nothing worked. The Krugers remained dissatisfied with the potential obstruction of the view from their hypothetical house caused by the Shrameks’ backyard improvements.

This being America, they sued for an injunction to stop the Shrameks’ from developing their property, seeking an order requiring the Shrameks to restore the rear of their property to its original grade, remove the present fence, and remove the trees. They claimed the Shrameks’ improvements were a private nuisance. The district court denied the Krugers any relief, holding that the change in grade on the Shrameks’ property actually improved the Krugers’ view of the golf course, and at any rate, the improvements made to the Shrameks’ property were not so substantial an invasion of the Krugers’ use of their property to justify the injunctive relief requested and that due to Horgan’s approval of the Shrameks’ construction.

The Krugers appealed.

Held: The Krugers got no injunction.

An injunction is an extraordinary remedy and ordinarily will not be granted except in a clear case where there is actual and substantial injury. Such a remedy should not be granted, the Court said, unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

The Court said a private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of his or her land. Nebraska follows § 822 of the Restatement (Second) of Torts, which provides that “one is subject to liability for a private nuisance if, but only if, his or her conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land and the invasion is intentional and unreasonable. With respect to a nuisance in the context of an action in equity, the invasion of or interference with another’s private use and enjoyment of land must be substantial.”

The general rule is that a lawful building or structure cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. This rule flowed from the repudiation of the traditional English doctrine of ancient lights. Under that doctrine, a landowner acquired an easement for light across an adjoining landowner’s property and could prevent the adjoining landowner from obstructing the light once the easement was established by the passage of time. The ancient lights doctrine as applied to claims involving views has been repudiated by every state considering it. One basis for the doctrine’s repudiation is that “it is not adapted to the conditions existing in this country and could not be applied to rapidly growing communities without working mischievous consequences to property owners.” The doctrine essentially created an unwritten negative prescriptive easement over a neighbor’s property, which would frustrate the purpose of the recording statutes, one objective of which is to ensure that all property rights are recorded and discoverable by a diligent title search.

The Court adopted the majority rule that a lawful building or structure, including landscaping improvements associated with any such building or structure, cannot be complained of as a private nuisance merely because it obstructs the view of neighboring property. “Based upon this proposition of law and our determination that the improvements made by the Shrameks were lawful,” the Court ruled, “we conclude that the district court did not err in denying the Krugers injunctive relief based on their private nuisance theory.”

– Tom Root