The Law

Ex’s Easement? by Ron Davis A dispute over easement rights at an Indiana shopping center has pitted a neighboring restaurant owner against the center’s owners—and her ex-husband. The shopping center is Elwood Plaza, in Elwood. And the dispute involved access to delivery docks that the shopping center’s tenants began using after the center’s expansion a few years ago. But such access caused delivery trucks to regularly block the restaurant’s entrance to its parking area so their drivers could reach the rear loading docks of some of the center’s tenants. In many cases, those parked trucks prevented customers from dining at the restaurant. Complaints to the center’s owners failed to stop the access problem. So the restaurant owner sued them. In response, the center’s owners claimed that use of the easement was legal. That’s because, the owners argued, the estranged husband of the restaurant owner had previously conveyed to the shopping center “an easement for ingress and egress only over and along” the restaurant’s portion of the access road. In return, the center’s owners gave the estranged husband, who operated a bowling alley adjacent to the restaurant, an easement along a path on the far side of the shopping center. Trucks delivering to the shopping center therefore did not present a problem for him. Moreover, the restaurant owner, while still married, had granted her husband the easement that had become such a problem for her. And it was only after the divorce that the shopping center expanded and the easement would later become a big issue. An Indiana court ruled in favor of the shopping center’s owners, explaining that because the restaurant owner had granted her husband the easement without explicitly restricting his ability to give it to others, his grant to the shopping center’s owners was valid. In so ruling, the judge denied the restaurant owner’s argument, but nevertheless ordered the shopping center’s owners to pay damages and to stop parking on the disputed easement. The restaurant owner was not pleased with that decision. And in her appeal, she did not dispute any of the court’s findings. She agreed that she had conveyed to her husband her interest in the bowling alley, but she challenged the conclusion that he had the authority to give the easement to the shopping center’s owners. In fact, the evidence showed that the granting of the easement by the restaurant owner was her gift to her husband. That’s because, she explained, the easement was the only way to reach his bowling alley at the time it was executed. An Indiana appellate court sided with the restaurant owner and ruled in her favor, pointing out that because of the easement’s limited purpose, the husband did not have the authority to extend its use to the shopping center. “We therefore conclude,” the court added, “that the trial court erred by determining that [the shopping center’s owners] have a valid easement on the [restaurant owner’s] property.” (Pizza King of Elwood v. The Peniel Group, 2013 WL 6198240 [Ind.App.] ) Decision: November 2013 Published: November 2013