Pergament v. Loring Properties, Inc.

In 1987, BSR Properties (BSR) purchased an apartment-building property. To finance the purchase, BSR obtained a loan from Midwest Federal Savings and Loan (Midwest) and secured the loan with a mortgage for the apartment building. At Midwest’s request, BSR obtained a parking easement from an adjacent office-building property, making the apartment building a dominant estate and allowing it to use eight parking spaces in the adjacent property’s parking lot. In 1988, BSR acquired the adjacent property or servient estate, and mortgaged it to Canada Life Insurance Company (Canada Life). With this second purchase, BSR united the titles to the parking easement’s dominant and servient estates. In 1990, BSR conveyed the adjacent property to Canada Life in lieu of foreclosure, and mentioned the parking easement in the deed. In 1993, Canada Life sold the adjacent lot to Loring Properties (Loring) (defendant). Canada Life did not include the easement in the deed to Loring, but it was mentioned in the title insurance policy. In 1997, BSR sold the apartment-building property to Brian A. Pergament (plaintiff). At that time, BSR also paid off Midwest’s loan on the property. The deed to Pergament mentioned the easement, but Pergament was not aware of it. From the date the easement was created, all parking spaces were used by the office building on the adjacent lot. When Pergament discovered the easement, he requested Loring designate eight parking spots for apartment residents. Loring refused. Pergament sued to enforce the easement. The district court found for Pergament, and the court of appeals affirmed. Loring appealed.