Tarason v. Wesson Realty, LLC.

2012 ME 47, 40 A.3d 1005, 2012 WL 1035703, 2012 Me. LEXIS 48
CourtSupreme Judicial Court of Maine
DecidedMarch 29, 2012
DocketDocket: Yor-11-277
StatusPublished
Cited by6 cases

This text of 2012 ME 47 (Tarason v. Wesson Realty, LLC.) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tarason v. Wesson Realty, LLC., 2012 ME 47, 40 A.3d 1005, 2012 WL 1035703, 2012 Me. LEXIS 48 (Me. 2012).

Opinions

ALEXANDER, J.

[¶ 1] In this appeal, we consider whether the trial court erred in concluding that J. Russell Tarason does not hold an easement over a portion of real property owned by Wesson Realty, LLC, because the 1925 deed that created the easement conveyed only a life estate in a right-of-way that terminated upon the death of the original grantee.

[¶ 2] Tarason appeals from a judgment entered by the Superior Court (York County, Fritzsche, J.) in favor of Wesson Realty on Tarason’s complaint seeking in-junctive relief and a declaratory judgment declaring that Tarason holds an easement over a portion of Wesson Realty’s property. Tarason argues on appeal that (1) contrary to the court’s determination, section 772 of the Short Form Deeds Act, 38 M.R.S. §§ 761-775 (2011), applies under the facts of this case, and pursuant to that statute, the operative deed created an appurtenant easement that benefits Tara-son’s property, and (2) the court erred in construing the language of the operative deed as having created an easement in gross that conveyed a life interest only to the original grantee rather than an appurtenant easement that runs with the land. We affirm the trial court’s judgment.

I. CASE HISTORY

[¶ 3] J. Russell Tarason owns property in South Berwick, as described in a deed to him dated July 29, 1999. The property is currently used as a parking lot. The portion of Tarason’s property at issue in this case is set back approximately forty feet from Scott’s Court, a short street or alley running behind what are now commercial properties. The last paragraph of Tarason’s deed states, “The above described premises are also conveyed together with a right of way from Scott’s Court, so-called, to the above conveyed premises, as the way existed near the house on land formerly of Abbie Tyler.”

[¶ 4] Historically, the property now owned by Tarason was conveyed in a deed dated June 18,1925, by Emma Wentworth to Leon Benoit. The 1925 deed, the operative deed in this case, states that Went-worth did “give, grant, bargain, sell and convey unto the said Leon Benoit, his Heirs and Assigns forever, a certain lot or parcel of field land....”

[¶ 5] After describing the property being conveyed to Benoit (and now owned in part by Tarason), the 1925 deed goes on to state, “Also granting and conveying to this Grantee a right of way from Scott’s Court, so-called, to the above conveyed premises, as the way now exists near the house on land of Abbie Tyler.”1 The 1925 deed also contains a common habendum clause that states that the “same with all the privileges and appurtenances thereof to the said Leon Benoit, his heirs and assigns, to their use and behoof forever” (italicization reflects preprinted language in the 1925 deed).2

[1008]*1008[¶ 6] Wesson Realty owns property consisting of three parcels as described in its deed dated August 31, 2007. The “first parcel” was once the Abbie Tyler property, and the “second parcel” is a piece of land approximately twenty-four feet wide that abuts the northern boundary of the first parcel.3 Tarason, who has alternative access to his property, asserts that he has the right to access his property from Scott’s Court via a right-of-way across Wesson Realty’s second parcel.4 Finding his access across the alleged right of way blocked, Tarason filed a verified complaint for injunctive relief and a declaratory judgment in November 2008.

[¶ 7] The court held a one-day bench trial in November 2010, after which it entered judgment for Wesson Realty. The court found that the 1925 deed conveyed a fee interest in the property currently owned by Tarason because it contained language of inheritance (i.e., it conveyed the property to “Leon Benoit, his Heirs and Assigns forever”). The court concluded, however, that the right-of-way from Scott’s Court created by the 1925 deed was an easement in gross that was personal to Leon Benoit and that did not pass through the chain of title to Tarason. The court concluded that the 1925 deed evidenced an intention to create an easement in gross because the words “heirs and assigns” appear with respect to the conveyance of the property before the language creating an easement and appear in the habendum clause after the language creating an easement, but those words were omitted, in the court’s view deliberately, from the language creating the easement itself.

[¶ 8] The court also concluded that section 772 of the Short Form Deeds Act, 33 M.R.S. §§ 761-775, does not apply because Wesson Realty already owned the disputed property in fee simple.

[¶ 9] Tarason filed á motion to alter or amend the judgment, which the court denied after a hearing. Tarason then brought this appeal.

II. LEGAL ANALYSIS

[¶ 10] We begin our analysis by determining whether section 772 of the Short Form Deeds Act applies in this case. Concluding that it does, we then apply the statute to the facts of this case to determine that the court correctly concluded that the operative 1925 deed created an easement in gross for the personal benefit of Leon Benoit rather than an easement appurtenant to the land now owned by Tarason.5

A. Applicability of Section 772 of the Short Form Deeds Act

[¶ 11] We review a court’s interpretation and application of a statute de novo as a question of law. Blue Yonder, [1009]*1009LLC v. State Tax Assessor, 2011 ME 49, ¶ 7, 17 A.3d 667.

[¶ 12] Enacted in 1967, the Short Form Deeds Act abolished the common law requirement that technical terms of inheritance must be used in a deed to create an interest of perpetual duration.6 83 M.R.S.A. § 772 (Supp.1967 & 1999); see Wentworth v. Sebra, 2003 ME 97, ¶ 8 n. 4, 829 A.2d 520; Stickney v. City of Saco, 2001 ME 69, ¶ 34, 770 A.2d 592. Effective September 18, 1999, this provision was made retroactive to all conveyances and reservations of real estate. See P.L.1999, ch. 69, § 1 (effective Sept. 18, 1999) (codified at 33 M.R.S. § 772(1)). The stated purpose of the 1999 legislation is to “clarify[ ] title to land currently encumbered by ancient deeds that lacked technical words of inheritance or an habendum clause.” 33 M.R.S. § 772(5).

[¶ 13] Section 772(1) thus provides, in relevant part, that a conveyance of real property, whether made before or after the September 18, 1999, effective date of the statute, must be construed as granting a property interest in fee simple, even if the conveyance fails to contain technical words of inheritance or an habendum clause, “unless a different intention clearly appears in the deed.” 33 M.R.S. § 772(1).7 We liberally construe section 772(1), as required by section 772(5), as applying to conveyances that create an easement. See Stickney, 2001 ME 69, ¶ 30 n. 11, 770 A.2d 592 (rejecting a party’s argument that section 772(1) is inapplicable to the conveyance of easements).

[¶ 14] In accordance with its plain language, section 772(1) applies to the facts of this case, and thus, Wesson Realty cannot prevail based solely on the argument that, because the 1925 deed fails to contain technical words of inheritance in conveying the easement, it created only an easement in gross.

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Tarason v. Wesson Realty, LLC.
2012 ME 47 (Supreme Judicial Court of Maine, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
2012 ME 47, 40 A.3d 1005, 2012 WL 1035703, 2012 Me. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tarason-v-wesson-realty-llc-me-2012.