Idaho Law Blog

By Joseph G. Ballstaedt

When transferring fee simple ownership in real property, Idaho law requires that the property description precisely describe the property. If not, the transfer is not valid. A much more lenient standard, however, applies to the conveyance of easements. If a document granting an easement does clearly and precisely define the easement location, the easement is often referred to as a “floating easement” or a “blanket easement.” These types of easements are not invalid.

In Idaho, a floating easement—or an easement grant without a definite location—it valid and becomes definite and fully defined by its initial use. For instance, in Manning v. Campbell, a written easement allowed the use of an unbuilt driveway “from the end of North 21st street of the city of Boise, Idaho, in a northerly and southerly direction, far enough to allow the [parties] to enter upon their premises.” This 1952 grant neither specified the exact location of the driveway nor its dimensions. About fifty years later, the driveway had been built, but the location and width of the easement became an issue of controversy. The Manning Court explained that the actual construction of the driveway fixed the location and width of the easement. In so doing, it supported the general rule that the initial selection of a place for an easement fixes its physical location.

By Joseph G. Ballstaedt

What if you are a non-Indian and purchase land within the borders of an Indian reservation? Are you submitting yourself to regulation by the Tribe and the jurisdiction of the tribal courts for matters related to your property and the use thereof? Probably not. The United States Supreme Court has explained that, as a general rule, tribes do not possess authority over non-Indians who come within the borders of an Indian reservation. This rule is particularly strong when the non-Indian’s activity occurs on land that the non-Indian owns in fee simple.

A good illustration of this rule is found in Evans v. Shoshone-Bannock Land Use Policy Commission, a Ninth Circuit case dealing with land located in Pocatello and within the borders of the Fort Hall Reservation. Evans, who inherited this land in fee simple, was not a member of the Shoshone-Bannock Tribes. He obtained a building permit from Power County—not from the Tribes—and began constructing a residence on the inherited property. The Tribes’ Land Use Policy Commission requested that Evans submit a building permit application and fees to the Tribes, but Evans refused. Eventually, the Tribes served a complaint on Evans from the Shoshone-Bannock Tribal Court, and Evans responded by seeking in federal court a declaration that the tribal court lacked jurisdiction.

By Joseph G. Ballstaedt

“Subletting” or “subleasing” occurs when a landlord rents a property to a tenant who then rents the property to another tenant known as the “subtenant.” A tenant may seek a subtenant so he can share rent expenses or he may want to find a subtenant while away for an extended period of time. In Idaho, subletting is legal unless the lease agreement between the landlord and the original tenant expressly prohibits it.

When a sublease exists, the original tenant is solely responsible for fulfilling the terms of the original lease with the landlord. For example, let’s say a tenant rents a larger, three-bedroom home for $1500 a month and then sublets two rooms to two roommates. Even if all three roommates agree to pay $500 a month, the original tenant is still responsible to pay the landlord the entire $1500 each month. It is no defense that the two subtenants did not pay their $500 because the landlord only has a contract with the original tenant, not the subtenants. (Similarly, the subtenants cannot enforce any of their contractual rights against the landlord.) This does not mean that the original tenant cannot seek reimbursement from the subtenants; it just means he can be evicted if he doesn’t pay the full $1500, whether from his own funds or with help from the subtenants.