LTI 9500, LLC, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1991

LTI 9500, LLC,
Appellant,

vs.

Security Warehouse/5th Avenue Lofts Association,
Respondent.

Filed September 9, 2019
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CV-18-1409

Justin P. Weinberg, Daniel N. Moak, Cyrus C. Malek, Briggs and Morgan, P.A.,
Minneapolis, Minnesota (for appellant)

David L. Hashmall, Brandon J. Wheeler, Felhaber Larson, Minneapolis, Minnesota (for
respondent)

Considered and decided by Connolly, Presiding Judge; Cleary, Chief Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
The parties are neighboring commercial-property owners whose dispute involves an
agreement granting appellant use of a parcel of respondent’s land to access appellant’s

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parking spaces. The district court granted respondent’s motion for summary judgment.
Appellant argues that the district court erred in concluding tha t the agreement was
unambiguous and granted appellant a license, not an easement. Because we agree that the
agreement was unambiguous and granted appellant not an easement but a license , we
affirm.
FACTS
In 1967, two owners of adjacent commercial properties in downtown Minneapolis
executed an Access Agreement (the agreement) . It provided that one owner (the payor )
would pay an “annual license fee” to the other (the payee) in exchange for the nonexclusive
right to use a strip of land (the land) belonging to the payee for access to the payor’s parking
spaces.
Section 8 of the agreement provided that:
This Agreement will automatically be extended from year to
year, as of May first of each year, by the payment of the
moneys due each year as of the imm ediately preceding
April 15th by [the payor, or appellant ], together with the
acceptance thereof by [the payee, or respondent], unless it has
been otherwise automatically terminated by the failure of [the
payor] in the performance of any of its covenants a nd
agreements herein contained, or unless it has been terminated
upon sixty (60) d ays written notice to [the payor] by [the
payee] for the failure of the deposit system established to
prevent parking or obstruction, as hereinbefore set out, to , in
fact, prevent such parking on or obstruction of said property.
[The payee] also reserves the right to cancel this Agreement in
the event that it should add to its existing building on the
adjacent premises or construct a further building or extension.
In the event of termination at some time other than on May
first, [the payee] shall make an appropriate proportionate
refund of any moneys paid hereunder.

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(Emphasis added.) The agreement did not include the word “easement.”
The agreement was first amended in 1985 to change the annual license fee from
$100 to $500. The amendment did not include the word “easement.” In 1998, the
agreement was amended a second time. This amendment referred to “that certain Access
and parking Easement Agreement” and said “the parties agree that the Agreement and this
Amendment may be placed on record.” This version of the agreement was duly recorded.
In 2005, respondent Security Warehouse/5 th Avenue Lofts Association became the payee
party to the agreement.
In 2015, appellant LTI 9500, LLC, became the payor party to the agreem ent by
respondent’s Consent to A ssignment and the 2015 Assignment and Assumption. Also in
2015, a third amendment to the agreement raised the annual license fee to $1,000 and
specifically provided that the agreement created a license, not an easement, and should not
be recorded as creating an easement.
Appellant then obtained government approval for a plan to construct an
underground parking ramp that would require the use of the land governed by the
agreement for ingress and egress. In October 2017 , respondent notified appellant that
constructing a ramp would be a material change of the intended use of the land and a
violation of the agreement . In November 2017, respondent notified appellant that it had
again violated the agreement because a flatbed truck servicing appellant’s building was
partially parked on and blocking access to the l and. On January 8, 2018, respondent
notified appellant that, because of appellant’s repeated violations of the agreement and the
failure of settlement negotiations “relating to the [agreement] and the proposed

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construction by [appellant] of a garage . . . within [appellant’s p]roperty,” respondent was
terminating the agreement as of March 16, 2018. On January 23, 2018, respondent notified
appellant of yet another violation and reiterated that it would terminate the agreement as of
March 16, 2018.
On January 24, 2018, appellant sent respondent a check paying the license and tax
fees owed under the agreement and filed a summons and complaint raising claims of breach
of contract and breach of an implied covenant of good faith and fair dealing and seeking a
declaratory judgment that, under the agreement, appellant was the owner of a v alid
permanent easement over the land and respondent had no authority to interfere with
appellant’s use of the land.
In February 2018, respondent filed an answer and a countercl aim for breach of
contract, seeking a declaratory judgment, injunctive relief, and to quiet title. In March
2018, appellant moved for a temporary restraining order (TRO). The motion referred to the
agreement as the “Access Easement” and sought to enjoin respondent from (1) terminating
the agreement, (2) interfering in any way with appellant’s use and enjoyment of access
over the land, (3) constructing any obstruction or barrier on the land, and (4) t hreatening
or harassing appellant.
Respondent opposed appellant’s motion, arguing inter alia that the phrase “together
with the acceptance thereof” in the agreement ga ve respondent the right to termin ate the
agreement by not accepting payment. Respondent also filed a notice of motion for a TRO
restraining appellant from building the parking ramp and from using the land for any
purpose other than access to appellant’s existing parking area. At the hearing on the TRO

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motions, the district court ordered the parties to maintain the status quo: appellant had right
of access over the land; no construction was to begin, and the agreement remained in force.
In April, respondent notified appellant that it was in receipt of appellant’s check but
did not accept the tender of money, that the agreement would not be renewed and would
therefore expire on May 1, and that appellant would no longer be allowed to use the land.
In June, the district court granted respondent a TRO consistent with its order at the hearing.
Respondent then moved for summary judg ment, asking the district court to
(1) dismiss appellant’s complaint; (2) find that the agre ement had expired on May 1;
(3) quiet title to the land by declaring that appellant had no rig ht, title, or easement; and
(4) dissolve the TRO.
Following a heari ng, the district court granted respondent’s motion for summary
judgment, finding that the agreement had expired, quieting title to the land in respondent,
and concluding that appellant has “no right, title, interest, estate, lien or easement in or
upon” the land.
Appellant challenges the grant of summary judgment, arguing that the agreement
was ambiguous as to whether the agreement conveyed a license or an easement to
appellant. Appellant also disputes that the phrase “together with acceptance thereof” in the
agreement entitled respondent to refuse payment and terminate the agreement.
D E C I S I O N
“In an appeal from a summary judgment where there is n o dispute of material fact
[an appellate court’s] review is limited to determining whether the lower court erred in its
application of the law.” Associated Builders & Contractors v. Ventura, 610 N.W.2d 293,

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298 (Minn. 2000 ). No material facts are disputed here; the dispute concerns t he
interpretation of an unambiguous contract. “If the contract is unambiguous when the
language of the contract is given its plain and ordinary meaning, construction of the
contract is a matter for the court and summary judgment is proper.” Auto Owners Ins. Co.
v. Perry, 730 N.W.2d 282, 284 (Minn. App. 2007). “A contract must be interpreted in a
way that gives all of its provisions meaning.” Current Tech. Concepts v. Erie Enters., 530
N.W.2d 539, 543 (Minn. 1995).
The district court concluded that “t he unambiguous language of the [a]greement
creates a license and does not create an easement.” We agree.
An “easement” constitutes an interest in the land itself, while a
“license” merely confers a privilege to do some act or acts upon
the land without conveying any interest in or title to the land
itself. . . . An e asement, ordinarily, is a permane nt interest in
the realty with the right to enter at all times and enjoy it, while
a license . . . may be revoked at will, and is terminated by a
conveyance of the land by the party giving the license.
Moreover, a license is of limited duration.

The intent of the parties determines whether an interest
in land is a licens e or an easement. . . . [I]f the instrument or
agreement merely confers permission to do an act or series of
acts on the real property of the one conferring the privilege, it
is a mere license and not an easement.

. . . [A ]s a general rule . . . a lic ense is revocable at any time.
An irrevocable license is said to be an easement rather than a
license.

28A C.J.S. Easements § 8 (June 2019 Update); see also City of Hutchinson v. Wegner, 195
N.W.2d 535, 53 6-37 (Minn. 1923) (“An easement always implies an interest in the land
upon which it is imposed, and therefore lies only in grant, while a license carries no such

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estate and is generally revocable at the will of the licensor. . . . [W]hether an easement or
a license was created [by an agreement] depend s largely on the intent of th e p arties.”
(quotations omitted)).
To support its conclusion that the agreement was a license rather than an easement,
the district court relied on t he agreement’s provisions that : (1) the licensor could
unilaterally cancel the agreement if it wanted t o add to its building or construct another
building; (2) the licensee’s right was limited to access “for the sole purpose of gaining
ingress to and egress from” part of the licensee ’s premises; (3) the agreement was on a
year-to-year basis; and (4) the licensee could not sell, assign, or convey its rights without
the licensor’s consent. The district court also noted that, while the second amendment did
use the term “easement,” it did not alter the rights granted to appellant and therefore showed
the parties’ “lack of intent to transform the Agreement from a license agreemen t into the
grant of an easement,” and the most recent 2015 amendment provided that it does not, and
“shall not be construed to, create any recordable interest, including but not limited t o, any
easement.” Thus, the agreement itself and its most recent amendment support the district
court’s conclusion that appellant had a license, not an easement.
As a license, the agreement is terminable by respondent. See 28A C.J.S. Easements
§ 8 (“[A] license may be revoked at will.”); Hutchinson, 195 N.W.2d at 537 (“[A] license
is generally revocable at the will of the licensor.”) Moreover, the agreement provides that
the agreement is extended annually by the licensee’s payment “together with the
acceptance thereof by [the licensor],” and the agreement “must be interpreted in a way that
gives all of its provisions meaning.” Current Tech. Concepts , 530 N.W.2d at 543. The

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district court recognized that respondent terminated the agreement by using the means of
termination the agreement itself provided and correctly granted summary judgment
quieting title to the land in respondent and stating that appellant “had no right, title, interest,
estate, lien or easement in or upon the land.”
Appellant raises three arguments. First, appellant argues that, in the phrase
“together with the acceptance thereof” in section 8 of the agreement, “acceptance” actually
means “receipt.” “Acceptance” is defined as “[an] offeree’s assent, either by express act or
by implication from conduct, to the terms of an offer in a manner authorized or requested
by the offeror, so that a binding contract is formed.” Black’s Law Dictionary 14 (10th ed.
2014). Relying on this definition, the district court noted that it is consistent with “the
[p]arties’ intent that [respondent] has a choice on whether to accept or reject [appellant’s ]
tender of money.”
Appellant’s second argument, that the a greement “ automatically extends upon
[appellant’s] timely payment” (emphasis in or iginal), removes from respondent the right
to unilaterally terminate the a greement and conflicts with the plain language of the
agreement as well as with the fact that a license is generally revocable at the will of the
licensor. See Hutchinson, 195 N.W.2d at 137.
Appellant’s third argument is that the two “unless” clauses in section 8 modify only
respondent’s acceptance, not the agreement’s automatic extension. But those clauses read,
“unless it has been otherwise automatically terminated” and “unless it has been terminated
upon sixty (60) days wri tten notice . . . .” T he antecedent of “it” in both clauses is “the
agreement,” not respondent’s acceptance. Contrary to appellant’s argument, section 8 does

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not provide that respondent can reject payment only if the contract has already been
terminated: presumably payment would not be made if no contract were in force.
None of appellant’s arguments succeeds. Consequently, we affirm t he summary
judgment granted to respondent.
Affirmed.