Category: Real Estate

Late to the party wall? Here’s a drafting tip

Despite its jaunty name, a party wall is not a vertical place of amusement but simply a single common wall on a property line, built to support two buildings.  The people who created party walls and party wall agreements a century or two ago didn’t consider what would happen if one of the two adjoining owners should want to add on to the party wall to support more floors, or to take the party wall down and redevelop a property.  Raising and razing party walls both present practical problems.

Lawsuits about party walls go back to at least 1813 and a decision of the English Court of Common Pleas in Matts v. Hawkins, 5 Taunton 20 (1813).  Twenty-five years earlier adjoining owners had built a party wall.  Ten years before the dispute got to court, Hawkins demolished his building, leaving the party wall standing.  Hawkins then built a shed against the party wall.  Later on Matts, whose building still stood, began to extend the party wall upward to support a floor that Matts was adding to his building.  Hawkins tore down the wall extension.  When Matts started to rebuild it, Hawkins tore it down again, and Matts sued Hawkins for trespass.  Hawkins argued that they were tenants in common as to the wall, and that as a tenant in common Hawkins could not be liable in trespass to Matts because the wall belonged to both of them.  The court rejected the argument of Hawkins and held that Matts and Hawkins each had some rights to the portion of the wall on the property of the other, which the court described as being easements.

One lesson of Matts v. Hawkins and the many decisions on party walls since 1813 is that a good party wall agreement should cover three points:

  • How will the owners divide the cost to maintain and repair the party wall?
  • Can either neighbor extend the wall upward, and if so, then can the extending neighbor build the extension on both properties?
  • What happens to the wall if one building is destroyed or is demolished?

Owners who want to be able to replace the party wall with a new party wall can use this clause to describe when and how each will pay for the new wall:

            If the North Building and the South Building are both demolished or destroyed, then the North Owner and the South Owner will replace the party wall with a new party wall designed and built to be capable of supporting buildings on the North Tract and the South Tract of up to ___ floors above ground.  The party that replaces its building first (in this section, the “Building Party”) will pay the cost to build the party wall and furnish an accounting of the cost to the other party.  The second party will reimburse the Building Party for one-half the cost to build the party wall before the second party begins construction on the second party’s building.  The second party will reimburse the Building Party for one-half the cost to build the party wall whether the second party uses all or part of the party wall.

Cui bono (who benefits)? Error Two in drafting easement agreements

Adjoining landowners enter into easement agreements to allow the grantee to use some portion of the grantor’s property for the benefit of the grantee’s property.  A good easement agreement will provide a legal description of the grantor’s property (what I usually define as the “Grantor Tract”), the grantee’s property (I usually call it the “Grantee Tract”), and the portion of the Grantor Tract that is subject to the easement (the location of the driveway, utility line, or other use).

Many old easement agreements state that the grantor is granting an access easement across a portion of the grantor’s property to the grantee “for access to the adjacent lands owned by the grantee.”  A century later the reader knows where the easement is, but not what land it benefits, at least not without digging into old land records to figure out what land the grantee owned in 1920.  Lawyers who don’t include a legal description of the grantee’s property in their easement agreements of today are creating problems for the real estate lawyers of 2120.

The case of the absent comma: Error Five in drafting easements

One common drafting error in easement agreements and other contracts is that the drafter doesn’t use exact language to describe what the contract allows, requires, or prohibits.  The grantee of a view easement is commonly paying for the right to prevent the grantor from building structures or allowing trees to grow in a certain area or above a certain height.  A 2018 case from Nantucket, Massachusetts, MacLean v. Conservation Commission of Nantucket, No. 17-P-746, Memorandum and Order (Mass. App. 2018) demonstrates what happens when the drafter squeezes too many concepts into not enough words.  Did the easement agreement prohibit all structures, or only tall structures?  A missing comma made the difference.

The plaintiff held a view easement over adjoining land on Nantucket Island.  The defendant’s property was subject to “a permanent and non-exclusive view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8’) feet from existing grade upon and over said Lot,” for the benefit of the plaintiff’s property.  The defendant built a deck and a staircase to the beach, both less than eight feet high.  The plaintiff sued to force the defendant to remove the deck and staircase.

Both parties argued that the easement language was unambiguous, but they read it differently.  The plaintiff said that the clause unambiguously prohibited construction of any and all structures, but vegetation could be up to eight feet high.  The defendant said that the clause unambiguously allowed the defendant to have both structures and vegetation if they were less than eight feet high.

The trial court took the defendant’s view and held that the easement did not prohibit structures that were shorter than eight feet.  The court said that the eight-foot limit unambiguously applied to both structures and vegetation, which meant that structures and vegetation were both allowed.  The plaintiffs (the easement holders) appealed.

The court of appeals reversed the trial court and found the language to be ambiguous.  In the court’s words, “the absence of a comma after the word ‘structures’ combined with the use of the term ‘and/or’ makes it unclear whether the eight-foot height restriction applies only to vegetation or to structures as well.”

That was an expensive missing comma.

Did the drafter intend to allow short structures?  The drafter could have written the clause this way:

* * * a permanent and non-exclusive view easement which prohibits any structures and vegetation from exceeding eight (8) feet in height above existing grade upon and over said Lot.

By contrast, if the drafter had wanted to prohibit all structures, but to allow vegetation up to eight feet high, the drafter could have written:

* * * a permanent and non-exclusive view easement which prohibits:

            (a)        any and all structures upon and over said Lot, and

            (b)        any vegetation with a height greater than eight (8’) feet from existing grade upon and over said Lot.

Don’t be bashful about using numbered and bulleted lists in your easement agreements to make it clear to the reader what you mean. The court of appeals is an expensive proofreader of your work.