PERDIDO PLACE Condo. OWNERS Ass'n INC. v. BELLA LUNA Condo. OWNERS Ass'n INC.

• Decision Date: 19 February 2010
• Docket Number: 1080226.
• Citation: 43 So.3d 1201
• Parties: PERDIDO PLACE CONDOMINIUM OWNERS ASSOCIATION, INC. v. BELLA LUNA CONDOMINIUM OWNERS ASSOCIATION, INC.
• Court: Alabama Supreme Court

43 So.3d 1201

PERDIDO PLACE CONDOMINIUM OWNERS ASSOCIATION, INC. v. BELLA LUNA CONDOMINIUM OWNERS ASSOCIATION, INC.

1080226.

Supreme Court of Alabama.

December 4, 2009.

Rehearing Denied February 19, 2010.

COPYRIGHT MATERIAL OMITTED.

John W. Parker, Mobile, for appellant.

W. Lloyd Roebuck of Kilborn, Roebuck & McDonald, Mobile, for appellee.

STUART, Justice.

The Bella Luna Condominium Owners Association, Inc. ("the BLCOA"), filed an action in the Baldwin Circuit Court seeking a judgment declaring a beach-access easement to be valid and enforceable and enjoining the Perdido Place Condominium Owners Association, Inc. ("the PPCOA"), from obstructing that easement. The PPCOA filed a counterclaim seeking a judgment declaring the easement void. Following a bench trial, the trial court entered a judgment in favor of the BLCOA and held the easement valid, though subject to certain restrictions. The PPCOA appeals. We affirm.

I.

In March 1999, David Cummans and James L. Brown conveyed certain gulf-front property that they owned in Orange Beach to Perdido Place, LLC, a limited-liability company operated by Cummans. Perdido Place, LLC, thereafter developed the property into the 44-unit condominium complex known as Perdido Place, which officially became a condominium on October 19, 2000, pursuant to the Alabama Uniform Condominium Act, § 35-8A-101 et seq., Ala.Code 1975. The units at Perdido Place are restricted to use by the owners; they cannot be rented. Perdido Place is managed by the PPCOA.

At the time Perdido Place was being planned, Cummans also owned a one-acre lot immediately north of the Perdido Place property on the opposite side of Highway 182. On April 2, 1999, Cummans conveyed that lot to P & C Properties, LLC ("P & C"). That same day, P & C also purchased from Fudpuckers of Orange Beach, Inc., 2.5 acres of property immediately adjacent to the 1-acre lot purchased from Cummans. Also that same day, Perdido Place, LLC, conveyed to P & C a pedestrian beach-access easement five feet wide across the eastern boundary of the Perdido Place property. The deed conveying that easement stated that it was appurtenant to the one-acre lot P & C purchased from Cummans that same day.

In April 2002, P & C created a two-lot subdivision known as Legacy Surf on the property it had purchased from Cummans and Fudpuckers in April 1999. Because of the way the lots were divided, each lot included portions of the property purchased from Cummans. P & C thereafter conveyed one of the lots to Legacy Towers Partnership and conveyed the other lot to Gulf Coast Surf, Inc. Legacy Towers and Gulf Coast Surf each subsequently conveyed their lots to TMG, LLC, which, on April 28, 2004, conveyed both lots to Bella Luna, LLC. The deeds recording each of the above transactions purported to convey not only the property, but also the easement over the Perdido Place property. However, Bella Luna, LLC, was notified by an attorney before it obtained the lots from TMG, LLC, that there was a potential problem with the easement. Specifically, the attorney advised Bella Luna, LLC, in a letter to amend the offering statement it proposed to give purchasers of condominiums in the development it planned for the property to acknowledge that potential problem:

"As we had discussed in our conference with Gulf Shores Title, the pedestrian easement for ingress and egress as described in the deeds conveying title to TMG, LLC (predecessor to Bella Luna, LLC) [was] appurtenant to only 100 feet of your 350-foot parcel of property. This creates a potential problem with regard to the availability of access over the described 5-foot parcel.

"The issue which may be raised is one of `over-burdening of use.' Each owner of the proposed condominium units will have an undivided interest in the property appurtenant to the easement. You and your successors however, may not increase the servitude imposed on the property over which the easement may run. The question arises as to whether or not the increase in the number of persons using an unlimited right of way easement is an unlawful additional burden on the servient estate. The answer to this question would need to be [addressed], if the question ever arose, by looking at the factors which would come into play to determine whether the use would be deemed to be reasonable and proper use, with circumstances to be considered including: local situations, the nature and condition of the premises over which the way is granted; the manner in which it is used; and the purpose which the parties had in due [sic] at the time the easement was created.

"I am not stating in this letter that there is no easement, I am just bringing this to your attention and would recommend that all of this be brought to the attention of each of your potential purchasers. They can each then get their own independent opinion from their attorney, if they have any specific concerns."

On July 21, 2006, Bella Luna, LLC, filed a declaration of condominium for the property, and, in March 2007, it completed construction of a 128-unit development known as Bella Luna. The tower itself is partially located on the lot formerly owned by Cummans, as are certain common areas of the complex. Each purchaser of a condominium in Bella Luna was required to acknowledge in writing that the legal status of the easement across Perdido Place was unknown. Bella Luna is managed by the BLCOA, and approximately 30 of the units are part of a rental program.

In 2006, while Bella Luna was still under construction, the PPCOA installed a fence along the perimeter of the Perdido Place property, effectively blocking any use of the easement in question. Shortly after Bella Luna was completed in March 2007, the members of the BLCOA board realized that the easement had been permanently blocked. The BLCOA then contacted the PPCOA in an attempt to open access to the easement; however, after expressing concern about renters from Bella Luna using the easement and the possibility of overburdening the beach in front of Perdido Place, the PPCOA declined to remove the fence Accordingly, the BLCOA instituted this action in the Baldwin Circuit Court on August 28, 2007.¹ that is, admittedly, outside the original dominant tenement—that is, the land acquired from Cummans—but each unit owner also owns an undivided interest in the land acquired from Cummans to which the easement is appurtenant. We agree that that fact is an important distinction.

The statement in Weeks upon which the PPCOA relies may be dicta; nevertheless, it is an accurate statement of the law. It has ample support in other caselaw, including Loveman v. Lay, 271 Ala. 385, 392, 124 So.2d 93, 99 (1960), which is cited in Weeks. This Court has previously summarized Loveman as follows:

"In Loveman v. Lay, supra, a dominant estate owner had an easement over the properties of two servient estate owners. The dominant estate owner also owned a piece of land adjoining and abutting his dominant estate, but not adjacent to the easement. The dominant estate owner allowed the easement to be used to benefit his property adjoining and abutting the dominant estate by allowing coal to be brought in over the easement to heat the buildings on the land adjoining and abutting the dominant estate. The servient estate owners sought injunctive relief, and this Court determined that `the hauling of coal over the [easement] for the purpose of heating the building or buildings west of the [dominant estate] should be enjoined,' 271 Ala. at 393, 124 So.2d at 99, because, `[i]f the [easement] is for the benefit of some particular land[,] it can not be used to accommodate some other tract of land adjoining or lying beyond.' 271 Ala. at 392, 124 So.2d at 99."

Phillips v. Water Works & Sewer Bd. of Ariton, 27 So.3d 1206, 1209-10 (Ala.2009). However, the instant case differs from Loveman inasmuch as it is impossible to state that any use of the beach-access easement by Bella Luna owners would not be for the benefit of property within the dominant tenement. As already noted, the Bella Luna owners all have an undivided ownership interest in the Bella Luna common areas, and it is undisputed that some of those common areas are located on the tract of land originally conveyed by Cummans to P & C and to which the easement is appurtenant. Moreover, it is readily apparent from the pictorial evidence submitted that the actual condominium tower traverses both the land formerly owned by Cummans and the land formerly owned by Fudpuckers, so even some individual units likely overlap both properties. Thus, while it was possible in Loveman to state conclusively that the disputed use of the easement was prohibited because that use clearly was for the sole benefit of property outside the dominant tenement, we cannot do the same in this case because each use of the disputed beach-access easement by a Bella Luna unit owner would clearly not be for the sole benefit of property outside the dominant tenement. Rather each owner's use would necessarily be for the benefit of that owner's parcel of property— which parcel is made up of both the owner's individual unit as well as that owner's interest in the common areas, some of which are within the dominant tenement. Accordingly, we cannot say that the use of the beach-access easement by the BLCOA overburdens the servient estate, i.e., Perdido Place, as a matter of law

Of course, although we are holding that the BLCOA's use of the beach-access easement does not constitute overburdening as a matter of law, the PPCOA may still assert, as a factual matter, that there has been overburdening. In that case, it would be the PPCOA's duty to prove overburdening. See Weeks, 941 So.2d at 271-72 ("`[T]he owner of the servient estate [ordinarily] has the burden of proving overburdening because the servient owner has asserted overburdening as a cause of action or as a reply to a special defense of an easement when...