June 23, 2018

Colorado Court of Appeals: Easement Deed Valid Even Without Description of Dominant Estate

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Armstrong on Thursday, December 28, 2017.

Real Property—Easements Appurtenant—Dominant Estate—Servient  Estate—Statute of Frauds—Constructive Notice—Extrinsic Evidence—Reverter Clause.

In 1984, Mackey executed a deed (Mackey deed) purporting to convey to Jefferson County a permanent public easement over a portion of the southeast corner of her property. Jefferson County executed a deed to the City of Lakewood (Commissioners deed) conveying the Mackey deed easement using the same legal description. The Commissioners deed contained a reverter clause that required Lakewood to use the easement exclusively for public open space, park, and recreational purposes. In 2011, the Armstrongs bought the property from Mackey’s successor in interest and occupied it. After the Armstrongs attempted to obstruct the easement’s use by locking a gate at one entrance to it, Lakewood filed suit. The district court entered summary judgment for Lakewood, finding that the easement was a valid express easement appurtenant.

On appeal, the Armstrongs asserted that the district court erred in granting Lakewood’s motion for summary judgment because the Commissioners deed violates the statute of frauds and is void for failing to legally describe the easement itself or the dominant estate. An easement does not require the precise description that a possessory interest does. While an instrument must identify with reasonable certainty the easement created and the dominant and servient estates, no particular words are necessary. Here, although the Commissioners deed does not expressly describe a dominant estate, it describes the entire servient estate and describes the easement itself with reasonable certainty and is not rendered invalid by any deficiency in the easement’s description. Further, the easement was recorded in the Jefferson County Clerk and Recorder’s Office over 25 years before the Armstrongs’ purchase of the property. Therefore, the Armstrongs had constructive notice of the easement.

The Armstrongs also contended that the district court impermissibly looked to extrinsic evidence to interpret the Commissioners deed. However, a court may consider extrinsic evidence to determine whether the description of an easement in a deed is reasonably certain or instead is invalid for vagueness. The district court did not err in considering undisputed extrinsic evidence to determine that the easement’s description encompassed the entire servient estate and what, if any, dominant estate the easement served for the purpose of determining whether the easement was identified with reasonable certainty and was therefore valid.

The Armstrongs further contended that the district court erred in enforcing the Commissioners deed because the reverter clause in the deed had been triggered, so the deed expired. The easement’s use is the determinative factor for triggering the reverter clause, not the zoning of the land benefited. Lakewood produced undisputed evidence showing that the dominant estate served by the easement has been continuously used exclusively for public open space, park, and recreational purposes. The reverter clause was not triggered.

The Armstrongs additionally argued that the Commissioners deed was void because Jefferson County did not have the authority to purchase the easement for use by Lakewood. Here, Jefferson County had the authority to purchase an easement for access to a public park or open space owned by Lakewood under its implied powers to promote public projects or public open space and parkland.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.