Pergament v. Loring Properties, Inc.

599 N.W.2d 146 (1999)

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Nature of the Case

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Facts

BSR Properties entered into a contract for a deed with Willow Street Properties to purchase property that included an apartment building, an office building, and a parking lot. The City of Minneapolis approved a plan to subdivide the property into two separate parcels, one parcel containing the apartment building, and the other parcel containing the office building and parking lot. BSR acquired a fee title to the apartment building. BSR obtained a loan from Midwest Federal Savings and Loan and agreed to secure the loan with a mortgage to the apartment building. Midwest Federal required that BSR obtain from Willow, the contract-vendor, a parking easement for the benefit of the apartment building, allowing the use of eight parking spaces in the parking lot adjacent to the office building. This easement was created by a declaration dated December 22, 1987. On July 28, 1988, BSR paid Willow the balance due on the contract for the deed and acquired fee title to the remaining property, the office building, and the parking lot. BSR financed the transaction with a loan from Canada Life Assurance Company and, to secure the loan, BSR gave Canada Life a mortgage to the office building and parking lot. BSR united title to the easement's dominant and servient estates. On December 20, 1990, BSR conveyed the office building/parking lot to Canada Life by deed in lieu of foreclosure. The parking easement was mentioned in the deed. Canada Life sold the office building/parking lot to D. The easement was not mentioned in the deed but was referred to in the title insurance policy. On February 28, 1997, BSR sold the apartment property to P and, incidental to the transaction, Midwest Federal's mortgage was satisfied. The deed from BSR to Pergament mentioned the easement. From the date the easement was created, all parking spaces in the parking lot were used exclusively in conjunction with the office building and were never assigned to nor used by apartment residents. P discovered the easement and requested that D designate eight of the parking spaces in its parking lot for use by apartment residents. D refused and P brought this action. The granted P's motion for summary judgment and the court of appeals affirmed. D appealed.