Block v. DEA Properties–2 LLC

“The dispositive question at issue in an implied easement case is whether a reasonable buyer would have been justified in expecting the easement under the circumstances that existed at the time of purchase.”

Plaintiff appeals a general judgment declaring Defendant had an implied easement over a portion of their property. Plaintiff and Defendant had adjoining parcels that previously were part of a larger tract of land owned by the Hatch heirs. The parcels were created in 1994 when Hatch subdivided the property into three parcels. In 1995, Hatch recorded an easement to parcel 3; no easement was recorded for parcel 2. Parcel 3 was later subdivided into two parcels, recording each with reference to the easement. Hatch conveyed Parcel 2 to the DeCarrios free from encumbrances and liens except for a beach access easement not at issue in the present appeal. At the time of this conveyance a dirt road existed as part of parcel 1’s flag stem. DeCarricos believed they would have access to parcel 2 from the dirt road, but there also was access from Ocean Boulevard. Both roads were used until they roped off the Ocean Boulevard access. Plaintiff bought  Parcel 1 in 2003. Plaintiff believed the dirt road was county property until 2015 when Defendant purchased Parcel 2 from the DeCarricos. “The dispositive question at issue in an implied easement case is whether a reasonable buyer would have been justified in expecting the easement under the circumstances that existed at the time of purchase.” Courts weigh the eight Cheney factors in making this analysis. Cheney v. Mueller, 259 Or 108, 118-19 (1971). The Court here determined that two factors weighed in Defendant’s favor, one factor did not apply, and five factors favored Plaintiff. The Court reasoned that because the Hatch heirs knew how to create express access rights and chose not to do so with Parcel 3 the second factor (looking at the terms of the conveyance) favored Plaintiff. The Court reasoned there was not a necessity for the easement because access by Ocean Boulevard was not of such a safety concern or so limited as to warrant the DeCarrios expecting to be permitted to use the road in 1997. The Court also determined there was no reciprocal benefit in the conveyance. The Court reasoned that in weighing the factors, and the overlap among them, the factors weigh against an implied easement here. The Court held that the trial court erred because the factual record does not support a legal conclusion that an easement arose by implication at the time of the conveyance in 1997. Reversed.