After not publishing a civil case for a month Division One has given us this landmark (we’re being sarcastic) easement case.

Vanyo’s trust (College Book Centers) bought a lot on the edge of Carefree Foothills and some adjacent land outside the subdivision. He wanted to develop lots on the adjacent land and to build a road to them over his Carefree Foothills lot. The Homeowners Association refused his request to do so since the CC&Rs permit  only houses – not a road –  on its lots. So he sued, claiming that the HOA had waived the CC&Rs by allowing two other roads to be built and that he had an easement by way both of implied and private necessity.  The trial court denied motions for summary judgment and Carefree’s JMOL. The jury found for Vanyo on the waiver issue but did not decide the other issues. Carefree  appealed.

Frequent violations may result in a waiver. The Court of Appeals held as a matter of law that two violations – both of which occurred 20 or more years ago, one of which was before the HOA was formed and neither of which the HOA had ever formally approved – is not “frequent.” And the CC&Rs said that failure to enforce them was not a waiver; the court held that such provisions are enforceable as long as there had not been a “complete abandonment” of the restrictive provision. This is what the court spends the most time on and appears to be why the case was thought worthy of publication.

The Carefree lot and the adjoining land had been commonly owned until 1912. An implied way of necessity across the lot could exist if, when they were severed, the only access to the adjacent land had been across what is now the  lot. But all Vanyo could prove was that there was no recorded access road, not that there was in fact no access. The court found this insufficient. Carefree had presented some evidence of other access and Vanyo had a burden to disprove it. The court also “could not ignore” the fact, although Carefree hadn’t mentioned it, that a 1909 survey showed various roads running across the property (in other words, the court couldn’t resist weighing evidence and making arguments the parties hadn’t).

In a footnote the court says it needn’t decide whether a person can obtain a private way of necessity over his own land. As much as we don’t like footnotes, since the parties didn’t brief this that’s probably the best way to handle what should perhaps have been a main issue.

But the court held that Vanyo did have a claim for a public way of necessity. The statute (12-1202) allows the owner of landlocked property to condemn property rights for an easement. What Vanyo can condemn here is the provision in the CC&Rs preventing him from building the road. The court seems to agree that that sounds odd but points out that Carefree did not object to the idea that that can be done. So the court remanded for new trial on that issue.

(link to opinion)