                                            RENDERED: SEPTEMBER 28-, 2017
                                                        TO BE PUBLISHED




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MAJESTIC OAKS HOMEOWNERS                                             APPELLANT
ASSOCIATION, INC.


                   ON REVIEW FROM COURT OF APPEALS
v.                        CASE NO. 2014-CA-000492
                 SHE:{JBY CIRCUIT COl!RT NO. 2009-CI-00873


MAJESTIC OAKS FARMS, INC., JOSEPH                                    APPELLEES
O'BRIEN. AND ASHLYN O'BRIEN



            OPINION OF THE COURT BY CHIEF JUSTICE MINTON

                        REVERSING AND REMANDING

      Kentucky law confirms the possibility of a defeasible easement, although

the term itself appears in no reported case describing this· type of easement,

which is an easement capable of termination upon the occurrence of a specified

event or contingency. In this case, Majestic Oaks Homeowners Association
                                                  .        .
(HOA) contends the defeasible easement principle applies to the easement for

ingress and egress retained by its subdivision's developer, Majestic Oaks Farms

(Developer), to terminate it when a majority of HOA members voted to do so, as ·

. allowed by the express terms of Developer's recorded subdivision plat. On

discretionary review, we agree with HOA.
                   I. FACTUAL AND PROCEDURAL BACKGROUND.
                                                                                         \
       ln 1995, Developer began developing a residential subdivision, _Majestic

Oaks Equestrian.Estates (Estates). To memorialize Developer's and fut:u_re

homeowners' rights in Estates, Developer recorded with its subdivision plat a

declaration of covenants, conditions, and restrictions (Original Declaration) and

incorporated its terms into the homeowners' deeds to lot~ in the development.

The Original Declaration accomplished two noteworthy things.

       First, the Original Declaration created Developer's easement in gross,

stating, "[Developer] shall have a superior right and easement in gross [to use

. Estates's private roads] ... for so long as [Developer], .its successors or assigns,
        .                          .            .
owns any Lot or any portion ofthe Property." The Original Dedaration defined

Lot as "any Lot which is part of the Property:'' Property was defined as "Lois 1-

23 as shown on the above referenced Plat." Additional lots could be added as

part of Property, according to the following language: "[Developer] intends. to

make this section containing 23 lots a part of a larger community known as

[the Estates], having been developed in accordari.ce with current plan .

.Subsequent additional plats will be recorded in the office of the Shelby County

Clerk's Office."

       Second,§ 8.3 of the Original Declaration, the other section at the center

of this dispute, states:

       Unless cancelled, altered or amended under the provisions of this
       paragraph, these covenantS and restrictions are to run with the
       land a.pd shall be binding on all parties claiming under
       them ... unless an instrument signed by a majority of the then
       owners of all lots subject to these restrictions has been recorded

                                            2
      agreeing to change these restrictions and covenants in whole or in
      part. 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.1

      In 1998 and 2000, Developer e:Xpanded Estates to inciude Lots 24-59,                 r

identified as "Sections 2 and 3," by recording a plat. The plat for Section 3 also
                    .                                                             .
identified a section of land for "Future Development," identified as "Sections 4

and 5." By this time, Estates included Lots 1-59; identified as "Sections 1-3."

By March 13, 2006, Developer no longer owned any property in the Estat~s,

having transferred Sections 1-3 to ihdividual homeowners within the HOA

through a quitclaim deed, but tontinued to own Section 4. Section 4 did not

become· part of Estates until April 2008, two years· after all of D·eveloper's then- . ·

existing property in the Estates was originally conveyed.

      In August 2006, HOA proposed amendments to the Original Declaration

to be voted on by the homeowners, proposing_two relevant changes: (1) to

expand "Property" to include Lots 1-59, i.e. Seetions 1-3 of the Estates; and (2)

to remove the language granting an easement in gross to Developer. The

amendment to remove this language :Passed with 82% approval, well above the

6 7% required by the Original Declaration. 2



1 Emphasis has been added to highlight the iniport~t language.         .
2 Because we ultimately conclude that Develope:r:'s easement was expressly ma.de
terminable and that the easement terminated when the HOA membership voted
decisively in August 2006', we consider Developer's argument of the possible legal
effect of its continued ownership of Section 4-the effective date of its inclusion in
Property being disputed-is not a material fact that precludes summary judgment in
favor of HOA.                                   · ·

                                           3
      Believing the easeme.nt to be ineffective, HOA filed suit in circuit court

against Developer to stop Developer's continued use of the purportedly

terminated easement in· gross because of the adoption by HOA of the
                                                                .              .
amendment to the Original Declaration arid the relinquishment by Developer of

any ownership rights in "Property." Both parties filed summary judgment

motions against each other, with the trial court ~anting Developer's motion
                                                     )   .
and a panel of the Court of Appeals affirming. We granted HOA's motion for

discretionary review.

                                       II. ANALYSIS.
   A. Standard of Review.
      . "The standard of review on appeal of a summary judgment is whether the

trial court con:ectly found that there were no genuine issues as to any material

fact and that the moving party was entitled to judgment as a matter oflaw."3

"An appellate court need not defer to the trial court's decision on summary

judgment and will review the issue de novo      beca~se      only legal questions and

no factual findings are involved. "4

   B. The Possessory Interest Granted to Developer was a Defeasible
      Easement in Gross that Terminated Upon a Q.reater Than 67% Vote,
      Sufficiently Fulfilling a Condition for Termination Stated in the
      Written Docum,ent Granting the Easement. .
      An easement "is an incorporeal hereditament to which corporeal property

is rendered subject."5 In other words, it is the right to use the land owned by ·
                        )

a Coomer v. CSX Transp., Inc., ·319 S.W;3d 366, 370 (Ky. 2010) (citing Scifres v. Kraft,
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.




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