916 S.W.2d 779, 781 (Ky. App. 1996)). .
4
Id. at 370-71 (citing Hallahan v. The. Courier-Jouma~
138 S.W.3d 699, 704 (Ky. App.
2004)). . . . ..
s Illinois Cent. R.R. Co. v. Roberts,
928 S.W.2d 822, 826 (Ky. App. 1996) (citing Henry
Bickel Co. v. Texas Gas Transmission Corporation,
336 S.W.2d 345, 347 (Ky. 1960).
4
someone else for a specified P,tirpose. "An easement in gross is ·a _mere personal
interest in or right to use the land of another. It is attached to and vested in,
the person to whom it is granted." 6 "[T]he principal distinction between ~
easement in gross and an easement appurtenant is that in the first there is
I
not, and in the second there is, a dominant tenement to which it is attached."7
"An express easement is created by a written grant with .the formalities of a.
deed."8
·There is no question in this case that whatever ri~t Developer has 1n the
real property it conveyed to HOA of an express easement in gross. And· the
disagreement between the parties. rests on whether that express ea~ement in
gross is legally capable of termination and whether HOA actually terinihated it.
A defeasible easement is one that "terminate[s] upon the occurrence of a
given event. "9 "[A]n easement may be expressly subject to termination by the
servient owner upon the ·occurrence ·of a specified event or contingency." id
"Where an easement has been created until the happening of a specific event. or
contingency, the easement will terminate ipso facto on the happening of the
specified event or contingency."11
6 Meade v. Ginn,
159 S.W.3d 314, 320 (Ky. 2004):
1
Id. .
s Sawyers v. Beller,
384 S.W.3d 107, 111 (Ky. 2012). .
9 Jon W. Bruce and James W. Ely, Jr., The Law of.Easements & Licenses in Land,§
10:3 (1988). .
10 25 Am. Jur. 2d Easements & Licenses§ 84 (2014).
11
Id.
5
Kentucky has never formally recognized the term defeasible easements.
But two cases confirm the existence of defeasible_easements in Kentucky;l2 In
Kenner, the Court stated:
The doctrine is well-settled at common law that no· freehold or fee-·
simpl~ estate can be destroyed by the breach or non..:performance
of a condition subsequent ... This common-law rule does not apply,
however ... to the creation of mere easements. [A]n incorporeal.
hereditament is not created at common law by livery of seizin; and
whenever the breach of~ subsequent condition happens in an
estate or grant of this character the estate terminates without any
entry. 13
Ascertained from the language above, this Court recognized the existence
of defeasible easements in Kentucky in Kenner.
In Otter, the entire discussion of the Court centered on whether an
. . f
easement purporting to end when a water storage tank owner "remove[d]
said tank" ended when the owner simply replaced the tank. 14 The Court
could not have even entertained this discussion had it not·assu~ed the
recognition of defeasibl~ easements in Kentucky. So acc~rding to Kenner
and Otter, Kentucky recognizes the existence of defeasible easements,
easem~nts ending upon the occurrence of a given event. Although this
dispute involves. two s"-uch events, termination of the easement upon vote
of the individual homeowner members of the HOA conclusively decides
this matter. ·
i2 Kenner v. American Contract Co.,
72 Ky. 202 (Ky. 1872); Louisville Chair & Furniture
·Co. v. Otter,
294 S.W. 483 (Ky. 1927).
13
Kenner, 72 Ky. at 207-08.
14
Otter, 294 S.W. at 483-87.
6
"In the case of an ex:press easement ... the terms of [an easement]
determine the rights and liabilities of the parties."is "[B]ecause [the] contract
created the easement, that contract also defines the extent of the easement."16
A trial court "commit[s] an error when it [goes] outside the easement agreement
to ascertain extraneously its mean.lng and effect, because the result [is] an
inferpretatic~n of the instrument incorisistent with the clear and definite
language employed in it."17
Taking these rules together, the extent of Developer's rights as to its
easement is confined by the very language it chose in retaining that easement.
, The Onginal Declaration states, "These restrictions may be cancelled, altered or
amended at any time by a 67% approval from each class of membership
subject to these restrictions, but [Developer] shall retain the sole right to
appoint the architectural approval committee until the last lot is sold." No
dispute exists as to the procedural validity of the vote itself-both parties agree
· that the vote was conducted properly. So, because the existence .of Developer's
easement is limited by its granting language in the Original Declaration, and
is.sawyers v. Beller,
384 S.W.3d 107, 111 (Ky. 2012) (citing Tex. E. Transmisswn Corp.
v. Carman,
314 S.W.2d 684, 687 (Ky.· 1958)).
16 Chancy v. Chancy Lake Homeowners Association, 55 ~o.3d 287, 297 (Ala. Civ. App.
2010) (citing Romar Dev. Co. v. Gulf View Mgmt. Corp.,
644 So. 2d 462, 465 (Ala.
1994)). Chancy, although only persuasive authority, is the subject of much debate
between the parties and lower courts. The lOwer courts seem to have missed an
. ' important factual distinction between Chancy and this case that shows that Chancy
does not in fact support Developer's position. The .Chancy court did not allow the
homeoWn.ers' association in that case to amend the easement because Chaney's
easement-granting document did not contain any sort of limitation or amendment
language.
Chancy, 55 So. 3d at 297. Rather, in this case, the Original Declaration, the
easement-granting document, allows for the a!p.ending of the "restrictions" of the
Original Declaration. · ·
17 Texas Eastern Cqrp. v. Carman,
314 S.W.2d 684,-687 (Ky. 1957).
7
because HOA validly abided by the procedure necessary to remove that
easement, HOA extinguished
.
Developer's easement.
.
Developer argues that HOA's ability to amend the Original :peclaration is .
confined to "restrictions," and not "covenants and restrictions," per the
language used in § 8.3 of the Original Declaration. And Developer argues that
the term easement does not fit under the ~mbrella of either "covenants" or
"restrictions."
:alack's Law Dictionary, specific to property law~ defines affirmative
covenant ~s ".[an] agreement that real property will be used in a certain way."18
An ~a.sement constitutes a covenant because an" easement, as stated earlier, is
an interest that can be created by an agreement and that· allows a landowner to
use lan,d that he or she does own for a specific purpose. So an easement falls
under the covenants umbrella in the Original Declaration.
To Developer's point, it is· true ~at this Court would. be hard-pressed to
refer to any easement, besides a negative easement, as a restriction. But the
language of§ 8.3 of the Original Declaration, in adc:Ution to interpretative
canons, supports our conclusion that an easement falls under the restrictions
· umbrella of the Original Declaration.
The applicable section,§ 8.3, begins by stating, "Unless cancelled, altered
or amended under the provisiOns of this paragraph, these covenants and
restrictions shall be binding.... " This opening1anguage implies nothing less
than covenants, and thus: easements, are amendable. The language of§ 8.3 ,
is Black's Law Dittionacy (10th ed. 2014).
8
also states, " ... unless an instrument signed by a majority of the then owners of
all lots subject to these restrictions has been recorded agreeing to change these
restrictions and covenants in whole or in part." Again, this language implies
that covenants are amendable.
The section then describes an amendment-voting process: "These
restrictions may be cancelled, altered.or amended at any time by a 67%
approval from each class of membership subject to these restrictions, but
Developers shall retain the sole right to appoint the architectural approval
. .
committee until the last lot is sold." We read this language more as 13-
description of the amendment process than as a .limitation on what can be
amended, considering the entirety of the section.19 Even more in· support of
this reading is the .discussion of Developer's "sole right to appoint the
architectural approval committee .... " If Developer truly intended to restrict
application of the amendment process only to. "restrictions," it would not have
ineluded, in the same sentence, a discussion of Developer's "rights~"
' .
Developer's rights including the use of the easement. Additionally, § 8.3 is.
located uri.der Art. VIII - General Provisions in a document entitled "Declaration
of Covenants, Conditions and Restrictions." So this amendment provision
seemingly generally applies to the .ability of HOA to amend covenants,
conditions, and restrictions.
19 Vansant v. Co~monwealth, 224 S:W. 367, 371 (Ky. 1920) ("the meaning of a word
may be ascertained by reference to the meaning of words associE;i.ted with it")_.
9
Lastly, this Court follows the contract interpretation canon historically
known. by the useful Latinism, con~a proferentem.: ·When interpreting contracts
susceptible to two meanings, we construe ambiguity. against the drafter,
' '
Developer in this case. 20 If Developer wanted its easement to be indefeasible, it
could have simply included a provision stating, ."Nothing in this document will
~ow tile amendment, alteration, or extinguishment of Developer's easement:"
This would have prevented anyone from arguing that Developer's easement is
·amendable, and thus, terminable.
So Developer's defeasible easement terminated upon a vote by tl).e
membership of HOA, in accordance with the Original Declaration. The trial
' '
court improperly granted summary judgment to Developer and the panel of the
Court of Appeals improperly affirmed the trial court. We hold from these facts
that HOA was entitled to judgment as a matter of law and the trial court erred
when it failed to grant HOA's summaryjudgment motion.
III. CONCLUSION.
We reverse the holding of the Court of Appeals and remand this case to
·the trial court with directions to enter summary judgment in favor of Majestic
Oaks Homeowners Association.
Minton, C.J.; C~.:mningh~, Hughes, Keller, Venters and Wright, JJ.,
sitting. All concur. VanMeter, J., not sitting.
20 B. Perini & Sons V. Southern Ry. Co., 239 S.W.2d 964, 966 (Ky. 1951).
' 10
COUNSEL FOR APPELLANT:
John C. ·Robinsoµ.
Robinson Salyers, PLLC
Brad Keeton
Matthew Kuhn
William M. Lear Jr
Stoll Keenon Ogdon, PLLC
COUNSEL FOR_APPELLEE, MAJESTIC OAKS FARMS, INC.:
Paul Anton Zimlich
Paul A. Zimlich, PLLC
COUNSEL
. FOR APPELLEES, JOSEPH
.
O'BRIEN AND. ASHLYN O'BRIEN:
.
.
Austin Hays
Austin Hite Hays, PLLC.
John B. Baughmam
Baughman Harp, PLLC.
11