Real Estate Law

Implied Easements

In Cadwallader v. Grosvenor, 178 Ohio App.3d 26, 2008-Ohio-4166, the 12th District Court of Appeals discussed implied easements and easements by prescription. The Cadwalladers purchased a residential lot from Clyde Arnold in 1959. In April 1959, Mr. Arnold created a road accessing the lot and recorded a plat map with the Clermont County recorder. Although Arnold may have intended on dedicating the road to the Cadwalladers lot as a public thoroughfare, he did not. He transferred the land to Mr. Scovanner without reserving an easement to the Cadwalladers. The Cadwalladers continued to use the driveway with the consent of Mr. Scovanner, but Mr. Scovanner refused to give the Cadwalladers an easement to solidify their legal right to use the roadway. The Cadwalladers could have rerouted their driveway to a state route adjoining their property. All implied easements have four elements: 1) there must be severance of the unity of ownership in an estate; 2) before the separation takes place, the use that gives rise to the easement must have been so long continued and obvious or manifest as to show it was meant to be permanent; 3) the easement is reasonably necessary for the beneficial enjoyment of the land granted or retained; and 4) the servitude is continuous as distinguished from a temporary or occasional use only. An implied "easement by necessity" adds an element that without the easement, the grantor or grantee as the case may be, cannot make use of his or her land. An implied "easement by prior use" includes the following in conjunction with the four necessary elements: "where an owner of land makes an apparant, permanent, and necessary use of one part of his land in favor of another part, and it transfers either or both parts, the grantor's reservation of an easement to continue such existing use will be implied." An "easement by prescription" requires that the moving show party showed that it has used the property openly, notoriously, adversely to the servient property owner's property rights, continuously for at least 21 years. In this case, there was no adverse use and therefore no easement by prescription, because Scovanner had given permission for Cadwallader to continue to use the roadway. There was no easement by necessity, because an alternate access to the Cadwallader property was available, even it was expensive. However, the court remanded the case for a trial to consider elements three and four of an implied "easement by prior use" finding that elements one and two had been established. Court found that the use before Mr. Arnold's transfer to Mr. Scovanner had been long enough and sufficiently permanent in character to show that it was meant to be permanent. No particular length of time is required, but each case will stand on its own facts.

Real Estate Fraud

In Loomis v. Troknya 2006-Ohio-731 (6th Dist. App.), the court of appeals affirmed a trial court's finding that there was no real estate fraud. The homeowner seller knew that the home's leach bed system did not comply with Health Department regulations. During inspection, seller informed buyer that the septic system did not meet current code. Later an inspector questioned whether there was any leach bed at all. The buyer sued for fraud claiming that the seller had wrongfully concealed that absences of any leach bed. The court of appeals said that the buyer was on notice of a problem and could not maintain the action for fraud.


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