Bunn v. Offutt
222 S.E.2d 522, 216 Va. 681, 1976 Va. LEXIS 185 (1976)
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Rule of Law:
A contractual provision granting the use of a facility to a "purchaser and his family" creates a personal, non-transferable license, not an easement that runs with the land, particularly when the right is not mentioned in the deed of conveyance.
Facts:
- On January 26, 1962, Harvey and Rosabelle Wynn signed a contract to purchase a house from Temco, Inc.
- The contract included the provision: "Use of apartment swimming pool to be available to purchaser and his family."
- The seller's agent represented to the Wynns that this right would pass to subsequent purchasers.
- The deed conveying the property from Temco to the Wynns on July 9, 1962, made no reference to the swimming pool.
- On May 31, 1969, Edward and Sandra Bunn contracted to buy the property from the Wynns.
- The Wynns and their agent told the Bunns that the right to use the pool was included with the property.
- The deed from the Wynns to the Bunns, dated July 18, 1969, also contained no reference to the pool.
- After the purchase, the Bunns' request for pool passes from the pool's owners, T. J. Offutt and his companies, was refused.
Procedural Posture:
- Edward and Sandra Bunn filed a suit against T. J. Offutt, Temco, Inc., and Dittmar Co., Inc. in a Virginia trial court.
- The trial court entered a final decree holding that the Bunns did not have an easement to use the swimming pool.
- The Bunns (appellants) appealed the trial court's decree to the Supreme Court of Virginia.
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Issue:
Does a provision in a real estate sales contract stating "Use of apartment swimming pool to be available to purchaser and his family" create a permanent property right (an easement) that is transferable to subsequent owners, or does it create a personal, non-assignable permission (a license)?
Opinions:
Majority - Harrison, J.
No, the provision creates a personal license, not a transferable easement. A license is a personal right given to a specific individual that cannot be assigned, whereas an easement is an interest in land that runs with the property to successive owners. The court reasoned that the language "purchaser and his family" was personal to the Wynns. Crucially, under the doctrine of merger, the provisions of the sales contract were merged into the deed, and the deed's silence on the matter is dispositive. The court also noted the original seller's testimony that he never intended for the right to extend beyond the initial purchasers.
Analysis:
This decision clarifies the critical distinction between an easement and a license, emphasizing that intent and formality are paramount in creating property interests. It underscores the doctrine of merger, where preliminary agreements in a sales contract are extinguished if not included in the final deed. For practitioners and property owners, the case serves as a strong reminder that any rights intended to 'run with the land' must be explicitly and unambiguously created in the deed of conveyance, as informal or personal language in prior contracts will likely be construed as a mere license that does not bind subsequent owners.
