• Key point. A church may have a legal right to use a road across adjoining property if it is the only means of access.
A Missouri court ruled that a church had a legal right to use a roadway across a neighboring property since an “easement by implication” had been created. Many churches use roads or driveways across adjoining property. Problems sometimes occur when the adjoining property owner sells the property and the new owner does not want to honor the arrangement. This is exactly what happened to a church in a recent case. In 1981 a husband and wife owned a 13 acre tract adjoining a state highway. They conveyed 2 acres of this tract to a church, which immediately began construction of a building. At the time of the conveyance there was a gravel roadway providing access to the state highway. The deed did not mention an easement, but the sellers advised the pastor that members and guests of the church could use the roadway as they needed it. The roadway has been used for access to the church up to the present time. The sellers later sold their property to another couple, who complained about the roadway and threatened to revoke the church’s authority to use it. An agreement was negotiated between the parties in 1988 which gave the church the right to use the roadway with an obligation to maintain it. This agreement expired after 12 months and was never extended or renewed. The couple later sold the property to another party, who insisted that he had the right to deny the church the right to use the roadway. He erected fence posts along their common boundary line, effectively cutting off access to the church over the roadway. The church asked a court to order the adjoining landowner to open up the roadway and allow the church to use it. A trial court issued an order as requested by the church, noting that the “easement” was visible, open, beneficial, and reasonably necessary at the time the current owners bought the adjoining property, and that the easement provided the church and others “the only reasonable and safe means of ingress and egress to [the state highway].” The case was appealed, and a state appeals court upheld the trial court’s ruling. It summarized the legal requirements for an “easement by implication”:
(1) A separation of the title; (2) necessity that, before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; and (3) necessity that the easement be essential to the beneficial enjoyment of the land granted or retained. Another essential is sometimes added to these-namely, that the servitude be continuous, as distinguished from temporary or occasional.
The court noted that the requirement of “necessity” is not “absolute necessity” but rather “reasonable necessity”. The court concluded that the church met this standard: “The roadway provided the only access from the highway to the improvements on the property. It is of no significance that the church did not exist at the time it acquired the property, because the roadway was being used and access to the highway was necessary for any use of the parcel conveyed.” The court concluded with the following advice:
There is a lesson in the entire record, which bears witness to the problems that people often face when they proceed informally in entering into important real estate transactions without the benefit of legal counsel. People who do this often find themselves in expensive and protracted litigation over matters which might have been settled at the outset by the payment of modest fees.
Application. The lesson of this case is clear-church leaders should retain an attorney to commit to writing any agreement with a neighoring property owner concerning the right of church members to use a roadway across the neighbor’s property. Oral understandings with the current owner may mean nothing to a future owner. Full Gospel Fellowship v. Stockwell, 938 S.W.2d 677 (Mo. App. 1997). [ Property of Corporations]
© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m21 c0298
