The Law Office of Kurt H King

April 20, 2020

Rent Payments–The Covid-19 Virus

Filed under: Bankruptcy,Litigation,Real Estate — kurthking @ 5:06 pm
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How do we pay rent when we can’t work due to stay-home orders concerning the Covid-19 virus?

We all hope to be back to work full tilt this May, but many workers may not see that happen.  Hopefully, our landlords will be flexible and adjust or abate rent while workers are laid off or unable to go to work due to “lock-down” stay-at-home orders.

Working with the landlord is key, but landlords and tenants should read their leases if they have one.  The lease may have Act of God or force majeure clauses that touch on what happens with rent in a pandemic situation.   If so, the words of those provisions are important to read and study.

Government orders and laws may also apply, such as “no eviction” stay mandates by the President and state and federal government, designed to not force tenants out on the street while the country is trying to minimize new infections of the Covid-19 virus.  However, those stay orders just postpone matters and rent will surely be due at some point down the road when stays are lifted, resulting in a mass of eviction cases.

If you have questions or need guidance on this area, please call so we can see whether there is a way to help you.  Thank you.

Kurt H. King  816.781.6000

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

Practice Areas–Bankruptcy Chapter 7, Landlord-Tenant disputes, Workers’ Compensation, Personal Injury, Family Law, Estate Planning, Employee Discrimination, General Matters

 

August 11, 2017

Merger of Title in Same Owner Extinguishes Easement by Prescription and Defeats Adverse Possession

Filed under: Litigation,Real Estate,Uncategorized — kurthking @ 4:51 pm
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Take, for example, a fact set where two adjoining but separate tracts of land were bought from different owners by the same husband and wife to form a single farm.  Then the husband and wife sell the farm in the two parts to separate new owners.  One new owner wants to claim an implied easement by prescription over the other new owner.  But did easement by prescription survive the merger of title into the husband and wife who owned both tracts of the real estate?

Answer:  No, the doctrine of merger extinguished easement by prescription (which is closely akin to taking of title by adverse possession in Missouri over ten years).

Long-standing Missouri law holds:

“One who owns the fee can not acquire an easement over it.  The easement, if

one existed, is merged into the fee.”  Marshall v. Callahan, 229 S.W.2d 730, 734-35 (Mo. Ct. App. S.D. 1950).

 

“[A]n easement is in general extinguished when the dominant and servient

estates are owned and possessed by the same owner.”  Maune v. Beste, 356 S.W.3d

225, 230 (Mo. Ct. App. E.D. 2011).

 

This result makes common sense–it would fly in the face of logic for the law to enable a person who owns all of a tract of land to turn on himself and try to claim he has made hostile or adverse use of his own land against his own interests.

 

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

 

Non-Adjoining Landowners Have No Automatic Right to Access A Roadway

Filed under: Litigation,Real Estate,Uncategorized — kurthking @ 4:28 pm
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Do landowners whose land does not reach the actual roadway itself have a right to access a roadway over another person’s land?  What if the boundary line reaches into the 60 foot (30 feet each side of middle or roadway) right-of-way but does not reach the roadway itself?

There seems to be a dearth of Missouri case law on this point, but there is inference that such a landowner has to find another way to obtain roadway access if his land does not reach the roadway itself.

In Fortenberry v. Bali, 668 S.W.2d 216 (Mo. Ct. App. E.D. 1984), a case where plaintiffs sought an easement by necessity, we find this inference that it is those plaintiffs whose property intersects or abuts a public roadway who have a right to drive from the public roadway directly onto their land:

“It was not disputed that plaintiffs’ property neither intersected nor abutted a public roadway. Therefore, the sole issue is whether plaintiffs have a legally enforceable right to use any alternative route. Hill v. Kennoy, Inc., 522 S.W.2d 775, 777 (Mo. banc 1975).”

Consequently, a easement over the owner of the land upon which the road lies appears to be necessary for non-abutting landowners to access the roadway.

(This may be an easement by necessity situation if no other means of roadway access is available, but note that inconvenience falls short of necessity.)

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

Roadway exception language in Deeds refers to an Easement

Filed under: Litigation,Real Estate,Uncategorized — kurthking @ 4:11 pm
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The language in deeds often “excepts” the roadway.  What does that mean?–the land under the roadway is not conveyed?–an easement is created?  Did the fee title to the land stay with a previous landowner, was it never conveyed, or what?

At least one Missouri case says that such language creates an easement for the roadway with fee simple held by the person who owns the land under the road.

In Ogg v. Mediacom, 142 S.W.3d 801, section III (Mo. Ct. App. W.D. 2004), the court of appeals declared:

“Use of terms such as “right of way,” “road,” or “roadway” as a limitation on

land is a strong, almost conclusive, indication that the interest is an easement.”

 

Apparently, fee ownership belongs to the person who owns the land beneath the road or road right-of-way.

 

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

 

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