Property Ch.9
Sara, a pilot, owned a 200-acre tract of undeveloped land. The property was bordered on the west side by a public road, on the east side by a public-owned lake, and on the north and south sides by other parcels of privately-owned land. The west half of Sara's land was covered by forest, and she occasionally visited it to hunt; on most of these occasions, she reached it from the public road. Occasionally, however, she reached the land by helicopter, landing in a meadow on the east half of the land and then walking over to the west half to hunt. In addition, Sara sometimes reached her property by boat; she would launch her boat from the public dock on the northeast side of the lake, and then row across to the east half of her land. Sara recently sold the east half of her land to Bill. Bill has just sued Sara to obtain a declaratory judgment that he has an easement by necessity over Sara's retained land to reach his own land. Assuming that the jurisdiction requires strict necessity, who will win the lawsuit?
Bill because the elements for an easement by necessity are satisfied.
Bill owned a home. The east side of his lot adjoined Highway 29, a public road. The south side of his lot adjoined a paved private road owned by Sylvia, which she used to travel between the highway and her home. Four nearby homeowners held express easements to use Sylvia's road, which was their only means of accessing their homes from the highway. Because there was so much traffic on the highway, it was convenient for Bill to reach his home by turning on to Sylvia's road, travelling along it for 30 feet, and then driving onto his lot; he did this every day for nine years when returning home from work, shopping, and other locations. Sylvia saw Bill using her road but never expressed any approval or disapproval of his use until last week, when she sent him a letter demanding that he never use the road again. Bill sued Sylvia and the easement holders seeking a declaratory judgment that he has a prescriptive easement to use the road. Assuming that the relevant statutory period is seven years, what is the most likely outcome?
Bill will win because the prescriptive easement elements are satisfied.
Adam developed a subdivision called Serene Acres which consisted of 100 single-family homes. Before sales began, Adam recorded a "Declaration of Covenants, Conditions, and Restrictions" in the chain of title to each lot. One of the restrictions provided: "No political signs may be displayed at any home in Serene Acres." Some buyers liked this restriction because it would bar ugly signs that spoiled the natural beauty of the area; other buyers did not care about the restriction. The declaration established a homeowner's association to enforce the restrictions. Five years later, the association failed to take action when four owners posted signs at their homes which endorsed a senate candidate. Four years after that Bill posted a sign on his house endorsing a presidential candidate. When the association complained about the sign, Bill pointed out that most of the people who liked the sign restriction had moved out of the subdivision. The association then sued Bill, seeking to enforce the sign restriction as an equitable servitude. Assume the jurisdiction has adopted the test in Nahrstedt v. Lakeside Village Condominium Association, Inc. to determine the enforceability of restrictions in a common interest community. Who will win the lawsuit?
Bill, because the restriction is unenforceable under the Nahrstedt test.
Golden Mills ("Golden") owned a 100-acre tract of land. It operated a lumber mill on the east half of the land; the west half of the land was covered by forest. Each day during working hours the mill emitted dust particles that landed on both halves of the tract, and on nearby properties as well. Golden sold the west half to Verna, who allowed the land to remain in its natural condition for the next 15 years; during this time, Golden's mill continued to emit dust as described above. Verna objected to these emissions, but Golden ignored her complaints. Verna then decided to build a residential subdivision on her land and again demanded that Golden stop emitting dust onto her property. Golden refused. Concluding that she could not prevail on a nuisance claim, Verna sued Golden for trespass. In response, Golden asserted that it held an easement to emit dust onto Verna's land. The statutory period for a prescriptive easement in this jurisdiction is 10 years. The court will most likely rule that Golden has which of the following?
Both an implied easement by prior existing use and a prescriptive easement.
Dan owned a 10-acre parcel located on a busy street. He subdivided the land into 10 lots; two of the lots adjoined the street, while the other eight did not. Before lot sales began, Dan recorded a "Declaration of Restrictions" in the chain of title to each lot. One of the restrictions provided: "The lots will be restricted to residential use." Dan sold Lot 1, which adjoined the street, to Abby; he then sold Lot 2, which did not adjoin the street, to Bob; over time, the other lots were also sold. Bob and the other buyers quickly built homes on their lots, while Abby did not. Abby then sold a life estate in her lot to Cal, retaining a reversion. A few weeks later, Elmer purchased a large tract of land upwind from the subdivision and installed a cattle feed lot. As a result, nauseating odors from the feed lot constantly permeate the subdivision; the odors caused four families to move out of their homes, leaving them vacant. Cal then established a small cattle feed lot on his lot. Bob objected that this violated the residential use restriction. Cal pointed out that the restriction had often been ignored in the past because: (1) one owner had telecommuted to her work for three months; (2) the teenage daughter of another owner had given swimming lessons in their backyard pool for two summers; and (3) another owner devoted all of his time to managing his stock portfolio from his home office. Bob then sued Cal, seeking to enforce the restriction as an equitable servitude. Who will win the lawsuit?
Cal, because conditions in the subdivision have changed.
Betty owned a 100-acre tract, which consisted of 80 acres of vacant dry land surrounding a 20-acre manmade lake called "Fish Lake." She subdivided the land into 81 parcels: 80 one-acre lots adjoining the lake and the 20-acre lake parcel. Betty's advertising campaign to sell the lots included TV ads which urged viewers to "buy a lot at Fish Lake Estates, where you can fish from your own backyard!" Carl and 79 other buyers purchased one-acre lots in the development from Betty; each of these buyers received a warranty deed which provided, among other things: "It is agreed that Fish Lake will be maintained as a lake in perpetuity and shall be restricted and limited to lake use forever." Carl and the other buyers all built homes on their lots and regularly fished in the lake. Betty then sold the lake parcel to Dave. Betty did not tell Dave that there were any restrictions on his right to use the lake parcel; Dave inspected the lake parcel before he bought, and noticed people fishing there, but did not ask them any questions. Two months after buying the lake parcel, Dave drained the lake and announced his intention to subdivide the parcel into 20 one-acre lots. Carl filed suit against Dave, seeking to enforce the restriction as an equitable servitude to force him to fill the lake bed with water and maintain it as a lake. Who will win the lawsuit?
Carl because the equitable servitude elements are satisfied.
Amy owned two lots which adjoined a public street. Lot 1 was improved with a small shed and lighting equipment, while Lot 2 was unimproved. For many years, Amy sold seasonal items on Lot 1: Easter supplies each spring, fireworks each summer, pumpkins each fall, and Christmas trees each winter. Amy's customers for these sales often parked on Lot 2. Last year, Amy sold Lot 1 to Bob, who planned to open a video game store on the land. During the sale negotiations, Bob asked Amy: "Will my customers be able to park on Lot 2, like your customers did?" Amy replied, laughing: "How could I stop them?" But Bob never used Lot 1; instead, he sold it to Carlos, who hoped to open an organic food store. During the sale negotiations, Bob explained to Carlos: "It's OK with Amy if folks park on Lot 2." But recently Amy told Carlos that she would not allow his future customers to park on Lot 2. Carlos sued Amy for a declaratory judgment that he has an implied easement by prior existing use to use Lot 2 for parking. Who will win the lawsuit?
Carlos because the elements for an implied easement by prior use are satisfied.
Jayne owned Farmacre, a small farm surrounded by several residential parcels. Farmacre has been in Jayne's family for decades. Farmacre is burdened by an express easement, created in the early 1900's, that provides access to Homeacre (a five acre parcel on Farmacre's northern boundary) across Farmacre's northern edge. The easement reads, in part: "for ingress and egress by humans on foot or by horse-drawn wagon for the benefit of Homeacre." Doug purchased Homeacre several decades ago and always crossed the easement by foot. However, for the past several years, he did not use the easement at all. Doug now wants to drive his SUV across the easement. In addition, Doug plans to subdivide Homeacre into ten half-acre residential lots. He wants all of his purchasers to be able to drive their cars over the easement across Farmacre. Doug also purchased a lot to the north of Homeacre (Playville) on which he wants to build a small cabin for his children to play in. Which of the following statements is incorrect, in most jurisdictions?
Doug will be able to use the right of way to access Playville.
In 1970, Dinah developed a 10-lot subdivision called "Happy Acres" on the outskirts of a large industrial city. Before selling any lots, Dinah recorded a set of CC&Rs against the entire subdivision, which were expressly intended to "burden and benefit Dinah, her successors, and her assigns forever." Paragraph 3(b) of the CC&Rs provided that the lots could only be used for "residential purposes." Dinah later sold all of the lots to various buyers, including Elmer, all of whom built single-family homes on their properties. Five years ago, a new oil refinery was built next to Happy Acres; the refinery sometimes emitted odors which drifted into the subdivision and temporarily sickened a few of the residents. As a result, the owners of two lots sold their properties to the oil refinery, which promptly demolished the houses and used the lots to store refinery equipment. Elmer, who still resides in a home on one of the lots, objects to this. Which of the following is most likely?
Elmer will be able to enforce the residential-only restriction against the refinery as an equitable servitude.
Olive loved to fly radio-controlled model airplanes on her property Airacre. Almost every day for 10 years, she stood on a hill located on the west half of Airacre and spent two hours steering an airplane through the airspace between 30 and 40 feet over all of Airacre, having it perform various aerial tricks. Elmo, another model airplane enthusiast who was familiar with Olive's weekend flying activity over both the west half and the east half of Airacre, purchased the west half of Airacre from her as a perfect site to fly his own model planes. Last weekend, when Elmo stood on his land attempting to fly his model airplane through the airspace over the east half of Airacre, Olive protested; she told Elmo: "Never fly airplanes over my land again!" Elmo now claims to have an implied easement by prior existing use over the east half of Airacre. What is the most likely outcome?
Elmo has an implied easement by prior existing use.
Fiona owns two adjacent parcels, Redacre and Blueacre. A public highway adjoins Redacre. To reach Blueacre, Fiona travels from the highway along a gravel road over Redacre until she reaches Blueacre. Blueacre does not adjoin a public road. Fiona sells Blueacre to George. The deed conveying title to George expressly provides that George will not receive an easement to cross Redacre. Three days after the closing, Fiona gives George a license to cross Redacre to reach Blueacre. But one week later, Fiona revokes the license. Which of the following is correct?
George has no right to cross Redacre.
Gillian owned a nine-hole golf course. She played the course early each morning before it opened for public use, and she routinely did well, except on the fourth hole. For six years, every day two or three of her drives on this hole went far to the right, landing in the backyard of a home owned by Oscar. Oscar often found balls in his backyard, which he sold to passing golfers. He never complained to anyone about the errant golf balls until last week, when one of Gillian's drives barely missed his head. Oscar then sent a letter to Gillian that read: "Gillian: Stop hitting golf balls into my yard! Sincerely, Oscar." Gillian then sued Oscar to obtain a declaratory judgment that she had a prescriptive easement to hit golf balls into his backyard. Assuming that the relevant statutory period is five years, who will win the lawsuit?
Gillian because all prescriptive easement elements are satisfied.
Steve owned a 2,000-acre tract of remote and unimproved mountain land. Aspen Lane, a public road, adjoined the south side of Steve's property. It was virtually impossible for Steve to access the east half of his land from Aspen Lane because the portion of his land that adjoined the Lane was a vertical 200-foot high cliff. Accordingly, when Steve wanted to travel to the east half of his land, which occurred about once each month, he normally rode a horse through the west half of his land to reach the east half. Over time, Steve's travel in this manner created a faint but discernable trail from the Lane, across the west half, and onto the east half. Steve decided to sell the west half of his land to Barbara. The deed that Steve delivered to Barbara provided, in part: "I hereby convey the west half of the tract to Barbara, reserving an easement for access across the path on the west half to reach the east half." Attached to the deed were correct legal descriptions of the west half and the east half. After close of escrow, Barbara said to Steve: "I'm sure that I'll see you on occasion when you cross through my land." Steve considered building a stairway up the cliff from Aspen Lane to reach his land, but ultimately decided not to do so because his easement across Barbara's land would provide adequate access. Steve rode his horse across Barbara's land once a month for six months until Barbara sent him this email: "Steve: My attorney advises me that you do not have any right to cross my land. Please do not do so in the future. Sincerely, Barbara." Steve sued Barbara for a declaratory judgment that he had a right to cross her land. Assume the jurisdiction requires strict necessity for an easement by necessity. What is the most likely theory on which the court will rule for Steve?
Implied easement by prior existing use.
Guy owned Blueacre, a 100-acre forest parcel that adjoined a public road only on its south side; the road was narrow and difficult to use. Guy's friend Harry owned Hillacre, a steep parcel that adjoined the north side of Blueacre. Because Hillacre adjoined a public highway that was in good condition, Guy asked Harry if he could sometimes cross Hillacre to travel between Blueacre and the highway; Harry replied: "Yes, of course." Two months later, Guy sold the south half of Blueacre to Irma. Last week when Guy attempted to cross Hillacre to reach the north half of Blueacre, Harry refused to let him enter. Guy then filed suit against Irma to obtain a declaratory judgment that he had an easement by necessity to cross the south half of Blueacre, so that he could access his land from the narrow public road. Assuming that the jurisdiction follows the traditional approach to easements by necessity, who will win the lawsuit?
Irma because Guy had permission to cross Hillacre.
Sam owned a 50-acre parcel of undeveloped land which adjoined a public highway on its north side. He often hunted wild turkeys on the north half of his land ("Blueacre"), but he visited the south half ("Greenacre") only four times over the 20 years that he owned the property. Beth hoped to purchase Greenacre, in order to build a factory; but this property did not adjoin a public road. Beth's friend Fred owned Redacre, a 10-acre parcel of vacant land. The west side of Redacre adjoined Greenacre, and the east side of Redacre adjoined a public road. Beth asked Fred: "If I buy Greenacre, can I get access across Redacre?" Fred replied: "Yes." Beth then bought Greenacre for $100,000. When she arrived at Redacre the next day, she found that Fred had installed "No Trespassing" signs all around the property. Beth ignored the signs. For two years, she regularly travelled between Greenacre and the public road by crossing Redacre, further developing her factory plans. Beth then received a letter from Fred which read: "Beth: Sorry, but I'm going to sell Redacre, so you can't cross it in the future. Cordially, Fred." Under traditional law, which of the following theories is most likely to provide Beth with a legal right to access Greenacre?
Irrevocable license to cross Redacre.
Ivan created a 200-home subdivision designed to appeal to golfers, called "Golf Acres." The subdivision was adjacent to a beautiful golf course that was also owned by Ivan. The set of CC&Rs that Ivan recorded against the subdivision before selling any lots expressly provided, among other things, that each lot owner, his heirs, successors and assigns would pay $500 per month to Ivan as a "golf club membership fee" in exchange for being allowed to use Ivan's golf course. Henry purchased one of the homes in Golf Acres, which he sold to Kay last year; before she purchased the home, Kay did not know there were any CC&Rs that affected it. Kay now refuses to pay the $500 per month fee to Ivan. Under the Restatement approach, which of the following is the most likely outcome?
Kay is required to pay the fee.
Dominic owns a large lot bordering a river. Dominic built his house on the western portion of the lot and constructed a large levee along his eastern lot line to protect against flooding. Dominic sold the eastern portion of his lot to Ronaldo. The deed read, in part: "for the benefit of Dominic, his successors and assigns, Ronaldo expressly promises on behalf of himself, his successors and assigns to maintain the structural integrity of the levee along his lot line." Ronaldo promptly recorded his deed. Ronaldo then sold his lot to Nanda and a few years later Dominic sold his lot to Lela. Nanda is an agronomist and has planted a number of bushes and trees along the levee. Unfortunately, the root systems of these plants are beginning to affect the soundness of the levee and an expert structural engineer has warned that any abnormally high river flow could breach the levee. Lela has sued Nanda, seeking damages based on Ronaldo's original promise to maintain the structural integrity of the levee. What is the likely outcome?
Lela will be successful because the promise is a real covenant.
Oscar owned Redacre, a single-family home in a large city. Oscar's friend Carla owned Green Pond, a small freshwater lake located 30 miles from Redacre. Two years ago, Carla executed and delivered a written instrument to Oscar, which provided that "Oscar is entitled to swim in Green Pond forever." The instrument complied with the Statute of Frauds, and Oscar recorded it immediately. Thereafter, Oscar swam in Green Pond whenever the weather was warm. Last month, Oscar conveyed his interests in Redacre and Green Pond to Beth. Yesterday, when Beth went to Green Pond, Carla refused to let her swim in the lake. What is the best justification for Carla's refusal?
Oscar held an easement in gross which was not transferable
Paul owned Horseacre, a 20-acre horse ranch located on a hillside. The north half of Horseacre included a large flat area where a barn was located. When it rained heavily, rainwater collected near the rear of the barn and flowed downhill onto the south half of Horseacre, where it created a pond about 50 feet in diameter in the only flat area on the south half. These heavy rains fell only one or two times each year, and the water in the pond always evaporated within a few days of the storm. Over time, this process created a shallow pit on the south half of Horseacre, about 50 feet wide and three feet deep, which was always muddy. Last summer, Paul sold the south half of Horseacre to Beth; at the time, there was no water in the pit. Yesterday it rained, and water from the north half of Horseacre flowed onto Beth's land, filling the pit. When Beth protested, Paul told her: "I have an easement to drain water onto your land." What is the most likely outcome?
Paul does not have an implied easement by prior existing use because the prior use was not continuous.
Raul owned Redacre, a 20-acre parcel of unimproved land. The east side of Redacre adjoined Blueacre, a 50-acre farm owned by Bob. Redacre did not adjoin a public road, but Raul held an express easement to travel from the north part of his land across Blueacre on a dirt road to reach Green Lane, a public road located on the east side of Blueacre. The state then built a new public highway that adjoined the west boundary of Redacre; after the new highway was completed, Raul stopped using the dirt road across Blueacre, and instead reached Redacre from the new highway. Raul told Bob: "You might as well plant corn where the road is. I won't need it in the future." Bob accordingly plowed up the dirt road on Blueacre and planted corn there for the next six years. Bob eventually purchased the south half of Redacre from Raul and began farming there. After a flash flood destroyed the highway, Raul tried to cross Blueacre to reach Green Lane, but found that tall corn blocked his way. Assume that the period for prescription in this jurisdiction is five years. Which of the following is correct?
Raul's easement was terminated by abandonment.
Sally owned a large lot located on a busy city street. She operated a steak restaurant in a building on the west half of the lot; the east half was undeveloped. Sally decided to sell the east half but wanted to avoid competition with her restaurant. Accordingly, when Sally sold the east half to Boyd, she inserted the following language in the deed with Boyd's consent: "The parties wish to ensure that the property will not be used for a purpose that competes with seller's existing restaurant on adjacent land. Accordingly, buyer covenants that a restaurant will never be operated on the property." Boyd promptly recorded his deed. He then entered into a written lease whereby he leased his new property to the Red Ox Steak Company ("Red Ox"), a national steak restaurant chain, for a 75-year term. Red Ox established a steak restaurant on the land. Sally sued Red Ox for damages on the theory that the restriction was a real covenant. Who will win the lawsuit
Red Ox because vertical privity is absent.
Bob and Carla own adjacent vacant lots. They enter into a written agreement which provides, among other things, that (a) any structures built on their lots in the future will be limited to one story in height and (b) the burden and benefit of the agreement shall run to their successors and assigns. The agreement complies with the Statute of Frauds and is recorded. Bob sells his lot to Sam; Carla sells her lot to Tina. Tina now plans to build a five-story condominium project on the land. Which is the most likely outcome?
Sam can enforce the agreement against Tina as an equitable servitude.
In 1980, AAA Corporation developed a 50-unit condominium project called "Swim World," which was intended to appeal to swimmers. The project included five Olympic size swimming pools. The recorded CC&Rs proclaimed that Swim World would be "the finest condominium project in the nation for swimmers," and created a homeowners association to "maintain and protect the five pools in the Swim World project." The 50 units sold quickly to avid swimmers, but over the years most of the original buyers resold their units, and most of the later buyers valued the project more for its convenient location than for its swimming pools, which were both very expensive to maintain and rarely used; a petition signed by the owners of 45 units asked the board to close the pools. Last year, the board of directors of the homeowners association voted to close the five swimming pools because "the maintenance costs are too high." Sandy, an avid swimmer, filed a lawsuit challenging the board's decision. Who will win the lawsuit?
Sandy, because the board's decision was improper.
Victor and Zelda owned adjacent undeveloped lots on a hillside. Victor owned the uphill lot, which enjoyed a sweeping view of the surrounding countryside, while Zelda owned the downhill lot. Victor wanted to protect the view from the home which he planned to build on his lot. Accordingly, he paid Zelda $10,000 in return for her agreement to the following restriction: "Zelda agrees, on behalf of her successors, heirs, and assigns, that no structure higher than fifteen (15) feet shall ever be erected or placed on her lot, and that the benefit of this agreement will inure to the benefit of Victor, his successors, heirs, and assigns." The agreement was signed by Zelda, complied with the Statute of Frauds, and was recorded. Victor built a lovely house on his lot, which he later sold to Sara. Zelda then built a house on her lot which was 40 feet high, entirely blocking the view from Sara's house. Sara sued Zelda for damages on the theory that the restriction was a real covenant. Who will win the lawsuit?
Sara because the real covenant elements are satisfied.
Fred owned a 20-acre tract of land in a rural area where he operated a copper smelter for many years. After the smelter was established, a number of homes were built nearby. Last year Norman purchased a tract south of Fred's land and built a small house there; he leased the house to Teri on a month-to-month basis beginning on January 1. Teri enjoyed her new residence until April 1, when the seasonal winds changed direction; instead of blowing from the south as before, the winds now came from the north, and brought with them a very unpleasant odor from Fred's smelter. During April, the odor was so repellent that Teri had to leave her house on eight occasions, generally for the entire day. On May 1, Teri complained to Fred that the unbearable odor often prevented her from living in her house. In response, Fred said: "I'm very sorry that the odor is causing problems for you. I never intended you to be harmed by it. But I would have to spend $500 to eliminate the odor, which I won't do." Fred took no action to fix the odor problem, and it recurred in May. The odor was so repellent that Teri had to leave her house a number of times in May to escape it. Teri then sued Fred for maintaining a nuisance. Who will win the lawsuit in most jurisdictions?
Teri, because the elements for nuisance liability are satisfied.
Mike developed a tennis-oriented condominium project on land he owned. He called his project "The North Point Tennis Ranch" ("Ranch"). The Ranch consisted of 100 condominium units, 10 tennis courts, and parking facilities. Mike recorded a "Declaration of Covenants, Conditions, and Restrictions" ("Declaration") in the chain of title of all 100 units before sales began. Section 21.9.3 of the Declaration provided: "Each unit owner is free to lease his or her unit to tenants, who will be entitled to use the tennis courts. However, in this situation the non-resident owner will be barred from using the tennis courts, in order to prevent overcrowding." The Declaration also established a homeowner's association that was given the power to enforce the provisions of the Declaration. Wendy, who loved tennis, bought one of the condominium units at the Ranch; at the time of purchase, she had no actual knowledge of the Declaration provisions because she had not read them. Two years later, Wendy bought a new house a few miles away from the Ranch and leased her unit to Tina pursuant to an oral month-to-month lease. Tina entered into possession of the unit. Two weeks later, Wendy drove back to the Ranch with her cousin, who was visiting from out of town, and they played tennis together on one of the courts. Wendy then received a letter from the homeowner's association which reproved her for "playing tennis as a non-resident owner, in violation of the Declaration." Wendy later sued the homeowner's association for a declaratory judgment that the ban on non-resident owners playing tennis was unenforceable. Assume that the jurisdiction uses the test in Nahrstedt v. Lakeside Village Condominium Association, Inc. to determine the enforceability of restrictions in a common interest community. How will the court rule?
The ban is enforceable.
Alma, Baker, Charlie, and Diana each owned a home located on Bluebird Lane; they were the only homes located on the lane. They entered into the following agreement: "We, the undersigned, owning fee simple absolute in our respective properties, hereby covenant and agree on behalf of ourselves and our successors, heirs, and assigns, that the homes on our properties will always be painted blue." The agreement contained legal descriptions of each parcel, complied with the Statute of Frauds, was signed by each owner, and was recorded. All four homes were then painted blue. Alma later sold her home to Nancy, while Diana sold her home to Gus. After Gus painted his house brown, Nancy sued him for damages on the theory that the agreement was a real covenant. Which of the following is most likely?
The benefit of the covenant ran to Nancy, but the burden of the covenant did not run to Gus.
Ruth, Sam, Tina, and Vern each owned a house that adjoined the Rapid River; their homes were the only residences on the river for miles. Concerned about the danger of drinking too much alcohol near a river, they entered into an agreement (the "Agreement"), which included this restriction: "On behalf of ourselves, and our successors, heirs, and assigns, we hereby agree that no alcohol may be consumed on any of our respective properties." The Agreement complied with the Statute of Frauds, was signed by all four owners, and was recorded. Ruth later sold her house to Mary, and Vern leased his home to Nick. Nick immediately began drinking wine in his leased home. Mary sued Nick, seeking to enforce the restriction as an equitable servitude to bar him from consuming alcohol on the property. Which of the following is correct?
The benefit of the restriction ran to Mary, and the burden of the restriction ran to Nick.
Mary owned a two-acre parcel of forest land where she planned to build a vacation cabin. But her land was entirely landlocked, without any legal access to a public road. The south side of Mary's land adjoined a 2,000-acre tract of forest land owned by a timber company, which in turn adjoined a public road. When Mary asked the company president whether she could cross through the company's land to travel to and from her land, he replied: "Why not?" Over the next six months, Mary spent $67,000 to build her cabin. Although Mary and her building contractor regularly crossed the company's land throughout the construction process, no one from the company saw this. One week after the cabin was finished, Mary discovered that the company had built a fence around its tract. When she complained, the company president asserted that she had "no right to use our land." Mary then sued the company for a declaratory judgment that she held an irrevocable license to cross the company land. Who will win the lawsuit?
The company because it did not know about her plan to build the cabin.
Rita owned a home located on a two-acre meadow, where she lived happily for many years. Oliver then constructed an oil refinery on a 1,000-acre tract that adjoined Rita's land. The refinery employed only 50 people because the production process was highly automated; but it provided most of the gasoline used in the northern half of the state. Last year a new federal law required that Oliver change the production process in order to minimize water pollution. But this change significantly increased the noise emitted by the refinery. As a result, the noise outside Rita's house was usually as loud as a telephone dial tone. Inside the house with the windows closed, the noise level was lower, more like the level of normal conversation. When Rita complained about the noise, Oliver told her: "The only way to eliminate the noise is for me to install special equipment that would cost $2.8 million. It's too expensive." Rita sued Oliver for maintaining a nuisance, seeking an injunction that would require Oliver to eliminate the noise. Rita's expert witness testified that Rita had suffered $5,000 in damages from the noise over the past year, based on the extent to which it reduced the fair rental value of her home. Alternatively, the expert witness testified Rita had suffered $80,000 in permanent damages from the noise, assuming that the noise would continue indefinitely into the future, because it reduced the fair market value of Rita's home from $200,000 to $120,000. The court found that the noise was a nuisance. What remedy will the court award?
The court will award Rita $80,000 in damages.
In 1900, Fred received an express easement by grant which allowed "travel over Gary's land Farmacre in perpetuity" to reach Fred's land Ranchacre. In 2000, Paula obtained title to Farmacre. Between 2000 and the present, no one used the easement over Farmacre because there is better access to Ranchacre by another road. Tanya now purchases Ranchacre. Tanya plans to develop a ranch-oriented resort on the land, which will include an elevated tram system that would allow visitors to travel 50 feet over the surface of Farmacre, suspended by ten towers to be built on that land. Which of the following is correct?
The easement language will not be interpreted to include an elevated tram system.
Mountain Enterprises, Inc. ("Mountain") developed a 250-lot subdivision on wild forest land that it owned. As the final step before lot sales began, Mountain recorded a "Declaration of Restrictions" ("Declaration") in the chain of title of all 250 lots. The Declaration provided, in part: "Because the subdivision is in a remote area, medical care for injuries may not be readily available. Accordingly, the owners of the said lots hereby covenant and agree that at all times each owner shall hold a current certification in first aid proficiency issued by the American Red Cross." The Declaration also established a homeowner's association, which was given the power to enforce the restrictions in the Declaration. Mountain later sold Lot No. 109 to Carla, who built a small vacation cabin on the property. Five years later, Carla died intestate; all of her property passed to her nephew Harry by intestate succession. Harry thereafter used the cabin happily until one day when his neighbor Lisa mentioned the first aid restriction. Harry responded: "I'm going to ignore it." The homeowner's association then sued Harry for damages on the theory that the restriction was a real covenant. What is the most likely reason that Harry will win the lawsuit?
The restriction does not touch and concern.
Gilda owned and operated a factory that made glass window panes which were used in homes and businesses. The factory was located in a remote area; there were no residences within five miles, except for a vacation cabin owned by Carl which was about 100 yards away from the factory. Sand is a key ingredient in the manufacture of glass, and Gilda regularly had a huge pile of finely-ground sand on her land, sometimes reaching 50 feet high. During July, when Carl was vacationing at his cabin, a strong wind blew sand from Gilda's pile onto Carl's land several times, where it caused $3,000 in damage to his car. When Carl telephoned Gilda to demand that she cover the sand pile to avoid further damage to his car, Gilda explained that this would cause delays which would slow down her production process, costing $20,000 per year. Gilda also suggested that Carl could pay $250 to buy a car cover if he was worried about the blowing sand. Concerned about future damage to his car, Carl sued Gilda for maintaining a nuisance and lost. What was the most likely basis for the court's ruling?
The sand was not an unreasonable interference with Carl's interests.
Olivia owned a five-acre tract of forest land that she used for recreation; the north side of her land adjoined Blue Lake. Terri owned a 20-acre parcel located immediately south of Olivia's land. Because Terri's land was forested and unimproved, she used it only for recreation during summer months. After buying the land, Terri camped on it each weekend over the next four summers during July and August. Because Terri's land did not adjoin Blue Lake, she walked across Olivia's land almost every day while she was camping to swim in the lake. When Olivia saw Terri walking across her (Olivia's) land the first time Terri did so, Olivia shouted: "Have a great time at the lake!" Subsequently, Olivia often saw Terri on her way to the lake and waved to her in a friendly manner. Terri then conveyed title to her land to Bob, who crossed Olivia's land in the same manner as Olivia had done and just as frequently. On a number of occasions, Olivia saw Bob on her land and waved to him. Three years later, after a dispute arose between Olivia and Bob, Olivia refused to allow him to cross her land. Bob then sued Olivia to obtain a declaratory judgment that he had a prescriptive easement to cross her land. Assuming that the relevant statutory period is five years, what is the most likely basis for the court to rule against Bob?
The use was not adverse.
Connie owned a 10-acre parcel of forest land; she lived in a house located on the west half of the property. A highway adjoined the east side of her land. Connie reached her house by leaving the highway and driving west across her land on a gravel road. A thin black telephone line ran from a pole near the highway, west through the trees on Connie's land, and connected to the telephone system in her house. The line was mostly concealed in the tree foliage, but could be seen in a diligent inspection of the land. A cell phone tower was installed near the house five years ago, and since then the local cell phone service has been far more reliable and better in quality than the traditional land line service. For this reason, over the last five years, Connie always made and received calls on her cell phone when she was at home; she never used the land line during that period. Last month, Connie sold the west half of her parcel to Ted. The deed which Connie delivered granted an express easement to Ted for access along the gravel road, but had no provision concerning the telephone line. Yesterday Connie told Ted that she intends to remove the line from her remaining land. What is the most likely basis for holding that Ted does not have an implied easement by prior existing use for the telephone line ?
There is no reasonable necessity for the use.
Able, Baker, and 48 other homeowners live in a residential subdivision. Last year, Corporation purchased a large tract of undeveloped land which adjoins the subdivision. Corporation established a large facility on its property to conduct research in bioengineering techniques. Part of its work involves manipulating genes to create animal/human hybrids, which can be used to test new medicines before they are given to humans. The facility is surrounded by a 20-foot high fence, and its exterior is patrolled by armed guards. Able, Baker, and other neighbors are extremely concerned that animal/human genes might be able to escape from the facility; they know that this has happened at similar facilities, resulting in serious problems. Able, Baker, and others sue Corporation on the theory that the facility is a nuisance. Is the facility a nuisance?
Yes, all elements for nuisance liability are satisfied.
Layne and Helena were neighbors. Helena decided to demolish her existing house and build a new two-story dwelling. Helena was required to replace her old sewage line with a new underground sewage line because of the increased size of the house. The topography of Helena's lot made it very expensive and inconvenient to connect the new sewage line to the public system to the east of Helena's lot. However, it was very economical and convenient to run the line under a portion of Layne's parcel and connect with the public system to the west. Helena and Layne talked and orally agreed that Helena could install her sewage line under Layne's property. Twenty-five years have passed. Layne recently sent Helena a letter directing her "to make other arrangements" and stop the encroachment across his parcel. In most jurisdictions, can Helena continue to use the sewer line across Layne's parcel?
Yes, because Helena gained an easement by estoppel over Layne's property.
In 1998, Leo purchased a 100-acre tract of forest land, plus an adjacent 20-acre lake; the lake was frozen over in the winter, but provided wonderful recreational opportunities in the summer. Leo rarely visited the property because he lived in a distant state. A small part of Leo's lake adjoined a 5-acre parcel which was owned by Zelda. Twelve years ago, Zelda built a vacation cabin on her land; since then she and her family have used the cabin for six or seven weeks each summer. During these visits, Zelda and her family usually swim, fish, and canoe on Leo's lake for five days each week. Last summer, Leo visited his property, spotted Zelda and her family swimming in the lake, and demanded that they "get out of my lake!" Which of the following is most likely?
Zelda and her family have a prescriptive easement to use the lake if the statutory period is 10 years or less.
Which of the following provisions in a set of CC&Rs for a common interest community of single-family tract homes is most likely to be unenforceable under the Nahrstedt test?
"No public displays of affection are permitted at any time."
Which of the following statements is not correct?
A writing is usually required for the creation of a real covenant, but a real covenant can also arise by implication from a common scheme.
Abby owned a 100-acre tract of mountain land that adjoined a public highway on its west side. She sold the unimproved north half of her land to Don, but continued to live in her house on the south half. Because the portion of Don's land that adjoined the highway was quite steep, Don routinely drove his jeep from the highway and across Abby's retained land in order to reach the level part of his land that was suitable for building. Abby regularly saw Don driving across her land but did not object. On one occasion, Don commented that he was thinking about bringing a mobile home to his land. Abby responded: "It will be nice to have a neighbor!" A month later, Don bought a used mobile home for $50,000, picked a suitably private spot in the middle of his land, and parked the mobile home there. He left the tires on the mobile home and did not install any foundation for it, so that he could easily move it to another part of his land in the future. Don continued to cross Abby's land as described above for two years, until he received a certified letter from Abby which read: "Don: Stop crossing my land! Abby." Don then sued Abby seeking a declaratory judgment that he had an irrevocable license to cross her land. Who will win the lawsuit?
Abby because Bob cannot prove sufficient reliance.
Abe and Bill owned adjacent 50-acre parcels where each operated a horse ranch; both parcels adjoined Highway 21, a public road. In 2000, Abe obtained Bill's oral permission to install a 100- foot long water pipeline on the surface of part of Bill's land, to provide water for Abe's barn by connecting the barn to the main public water line, which ran along Highway 21; this was beneficial to Abe because this meant the line could be shorter than if it ran entirely through Abe's own land. Abe installed the pipeline, which was painted orange so that it could be easily seen. Last year, Bill sold his horse ranch to Carla. Carla now demands that Abe remove the pipeline. Which of the following is most likely?
Abe has a right to keep the pipeline in place.
Able owned a 1,000-acre tract of desert land, bordered by a newly-paved public road on the north side, by other privately-owned parcels on the east and west sides, and by an old public road on the south side. Able never used the south road to access his land because it was narrow and poorly maintained; in several locations, flash floods had eroded the dirt roadbed so substantially that any car would get stuck unless it was driven with extreme care. Able recently sold the south half of his land to Darla, after fully explaining the problems with the south road. After Able delivered the deed to Darla, Darla exclaimed: "Maybe I qualify for an easement by necessity!" Able replied: "I bet you would." Darla then sued Able, seeking an easement by necessity over his retained land. Assuming the state follows the traditional approach to easements by necessity, who will win the lawsuit?
Able because Darla cannot satisfy the elements for an easement by necessity.
Dahlia owned a large lot in fee simple absolute. She decided to sever the lot into two parcels, Northacre and Southacre. At the moment of severance, Dahlia conveyed Southacre to Aldo. Her quitclaim deed read, in part: "to Aldo and heirs, together with an eight-foot right of way over Northacre to Southacre's northern edge for Aldo and his successors and assigns." Using this eight-foot strip was the only convenient way that Aldo could access his property. Shortly after Dahlia conveyed Southacre, a new road opened bordering the southern edge of Southacre. Thereafter, Aldo always accesses his parcel from the new road. At the present time, which of the following best characterizes Aldo's interest?
Aldo has an express easement by grant.
Nina wanted to create an environmentally-friendly residential subdivision on her 50-acre parcel. She subdivided the property into 100 lots, each one-half acre in size, and dubbed her project "Evergreen Estates." The sales brochures she prepared for the project proclaimed, among other things, that Evergreen Estates homes would obtain "all of their electricity from rooftop solar panels"; every potential buyer received one of these brochures. Over the next year, Nina entered into contracts to sell all of the lots, including a contract to sell Lot 1 (the first lot sold) to Alf and a contract to sell Lot 100 (the last lot sold) to Zeke. Every sale was consummated and the relevant deed duly recorded within two months of signing the contract. Nina instructed her staff to ensure that every deed to a buyer had the same common set of restrictions, including a provision that: "Buyer covenants on behalf of all successors and assigns that the only source of electricity for any home built on this parcel will be from solar panels located on the roof of that house." However, this solar panel restriction was accidentally omitted from 9 of the 100 deeds. Zeke received Nina's sales brochure before he signed his purchase contract, but he never read it. Shortly before escrow closed on Zeke's purchase, his cousin asked him: "Isn't that the place that requires solar panels...where you are buying the lot?" Zeke replied: "I don't know." The deed that Zeke received at close of escrow did not contain the solar panel restriction. Zeke never read his deed. The first houses in the subdivision were completed three months after Zeke obtained title to his lot, and Zeke noticed that they all had solar panels. Because Zeke believed that solar panels were unreliable, however, he did not install them at his own house; instead, he arranged for the local public utility to supply electricity. Alf then sued Zeke, seeking to enforce the solar panel requirement as an equitable servitude to force Zeke to obtain all of his home electricity from solar panels. Who will win the lawsuit?
Alf because all equitable servitude elements are satisfied.
Luxury Resorts, Inc. ("LRI") developed "Desert Sands," a resort which featured 200 condominiums and a large golf course, on land it owned. Before sales began, LRI recorded a "Declaration of Covenants, Conditions and Restrictions" ("Declaration") in the chain of title of all 200 condominium units. The Declaration provided that its restrictions would benefit and bind "all unit buyers, and their successors and assigns." One of the restrictions in the Declaration stated: "Because liquid paint is flammable, it increases the risk of fire at Desert Sands. Accordingly, no one may possess liquid paint within any condominium unit." LRI then sold units, in sequence, to Alma, Bill, and other buyers. Bill later conveyed a life estate in his unit to Carl. Carl, an amateur painter, immediately brought gallons of paint into his unit. Alma sued Carl, seeking to enforce the restriction as an equitable servitude to force him to remove the paint. Who will win the lawsuit?
Alma because the equitable servitude elements are satisfied.
Sienna owned two contiguous parcels. One year ago, she built a house on the eastern most parcel (Eastacre), but failed to develop the western most parcel (Westacre). Given the topography of Eastacre, it would have been extremely difficult and very costly to construct an access road to connect her house with the county road to the east. Consequently, Sienna built a dirt roadway over Westacre to connect her house with a county road to the west and used the roadway almost daily. A few months later, Sienna sold Westacre to Josie. Shortly thereafter, a new state highway was built bordering Eastacre on the north. It then became very convenient for Sienna to access her home directly from the highway rather than driving across Westacre. Recently when Sienna attempted to drive her car across Westacre, she found her access barred by a new gate Josie had erected. Josie was standing by the gate and shouted, "Access your home by means of the state highway. I no longer want you on my land." Traditionally, which easement to cross Westacre, if any, would Sienna have?
An implied easement by prior existing use.
