Property II Midterm - Private Land Use Planning

Creation of Prescriptive Easement

Adverse use of another's land may create a prescriptive easement. Unlike adverse possession, the prescriptive use need not have excluded all other activities on the affected land. The servient tenant's objections do not interrupt a prescriptive use except in jurisdictions that follow the lost grant theory. The use need not be continuous, but, if it is limited in time, the easement will be similarly restricted. A few jurisdictions permit the public to acquire recreational easements through long continued use.

Easement Termination

An easement ends when (1) its express time period expires, (2) it has been properly revoked, (3) the servient estate has been destroyed, (4) the necessity that created it ends, (5) the dominant and servient estates merge, (6) the dominant tenant reconveys it to the servient tenant or abandons it, (7) the servient tenant recovers it by prescription, or (8) it is forfeited by the dominant tenant's abuse of it.

Will enjoys having large wads of cash, so becomes an attorney for the bank. The bank is about to start a mortgage foreclosure on a borrower who has fallen behind in his payments, and the bank has several options. Which of the following options should Will recommend to the bank? A. a judicial foreclosure B. a deed in lieu of foreclosure if the borrower is willing C. a non-judicial foreclosure D. a second mortgage

B is the best answer here. If the borrower, the mortgagor, is willing to turn the property over to the bank, that saves the bank time and money. A and C are valid options if the borrower won't just give up, and it's debatable as to which is the better option for the bank. It comes down their level of risk-aversion. D is something I threw in because I couldn't think of anything else that even came close.

Creation of Easement by Implication

When one part of a parcel of land is used for the benefit of another part, a physical division of the parcel may create an easement by implication. The use must have been apparent, continuous, and beneficial (or necessary, if an implied reservation is claimed). When severance landlocks a parcel, an easement of necessity may be implied even if no prior use existed.

A corporation contracted for the right to enter a man's property in order to mine coal from the land. The terms of the contract did not state whether the right was assignable. The corporation sought to sell the mining rights to a third party. May the corporation validly assign its rights under the contract? A

Yes, because profits à prendre are always assignable There are three types of easements: (1) easements appurtenant, (2) easements in gross, and (3) profits à prendre. A profit à prendre is the "right or privilege to go on another's land and take away something of value from its soil or from the products of its soil (as by mining, logging, or hunting)." Easements appurtenant are inseparable from the land itself and, therefore, pass with the estate and cannot be conveyed separately from the dominant estate. Easements in gross are generally not assignable if they are for personal or recreational use but are assignable if they are for business or commercial use. Profits à prendre are always assignable, whether they are for personal or commercial use. Here, the corporation has a profit à prendre, because it is privileged to enter onto the man's land for the purpose of extracting coal. Therefore, the corporation may freely assign the right to a third party.

A homeowner granted a gas utility company an easement to drill for gas underneath the surface of the homeowner's land. The document creating the easement did not specify its duration. After five years of drilling, the gas utility company was acquired by a large energy conglomerate. May the gas utility company assign the easement to the energy conglomerate in the acquisition?

Yes, because the easement is a profit a prendre. A profit a prendre is a right or privilege to enter another's land and take away something of value from its soil or from the products of its soil (as by mining, logging, or hunting). Profits a prendre are always assignable, regardless of whether they are for personal/recreational use or business/commercial use. Because the homeowner granted the utility company a profit a prendre, the utility company may freely assign the easement to the energy conglomerate as part of the acquisition

A homeowner planted a summer vegetable garden in the same location at the back of his property every year for over 15 years. The garden was visible from an adjoining neighbor's home during the three months that the homeowner used it each year. Unbeknownst to either the homeowner or his neighbor, half the garden was actually located on the neighbor's land. In preparation for selling his home, the neighbor had a new survey done and discovered that half the garden was on his land. May the homeowner continue to garden on his neighbor's land?

Yes, because the homeowner has acquired an easement by prescription. To acquire an easement by prescription, the homeowner's use must be: (1) short of full possession; (2) adverse or hostile; (3) open and notorious; (4) continuous and exclusive; and (5) for the necessary period of time. Here, the homeowner's use of his neighbor's land was short of full possession. It was adverse or hostile to the owner, in that the homeowner used the land in a way that violated the neighbor's lawful rights to use his property. The homeowner's use of the neighbor's land did not have to be undertaken with malice or ill will; the fact that the homeowner did not intend to trespass upon his neighbor's land is therefore not relevant.

Types of Easements

• Express easement • Implied easement by prior existing use • Easement by necessity • Prescriptive easement • Easement by estoppel (or irrevocable license) The express easement arises only with the agreement of the owner whose land is burdened. But the remaining four types are imposed as a matter of law, without the owner's agreement.

A parcel of land had no direct connection to the nearest public road. The owner of the parcel had an easement over his neighbor's property allowing the owner to drive over a dirt path on the neighbor's property to access the public road. The owner of the parcel sold his land to a purchaser, who continued to use the easement over the neighbor's property. The neighbor sued the purchaser, claiming that the easement did not transfer from the owner to the purchaser when the property was sold. The court ruled against the neighbor, holding that the easement still existed. What characteristic of the easement best explains the court's ruling?

That the easement was appurtenant, rather than in gross. Here, the easement is an easement appurtenant because there is a dominant estate (the property of the owner/purchaser) and a servient estate (the neighbor's property). Because the easement is an easement appurtenant, it will automatically pass with the dominant estate, unlike an easement in gross. Therefore, this characteristic of the easement is the dispositive factor supporting the court's ruling.

Creation of an Easement (Express Language)

A grantor may convey an easement to another person or may reserve one for herself on land that she is conveying to another. If the interest is granted orally, it usually is a license and is revocable at will unless the grantor is estopped from doing so by virtue of the grantee's detrimental reliance. In most jurisdictions, an easement cannot be reserved in favor of a third party to a deed.

Pukwudgie is selling his house in the woods, where there is no local zoning. Brandon sees the house advertised online and loves it. Brandon double checks the house by looking at street view and aerial views online, and everything looks perfect. He signs a contract to buy the house. Before closing Brandon finds out that the ceilings in the house are only 5 feet tall. Can Brandon get his earnest money deposit back? A. No because Pukwudgie doesn't have to disclose things a buyer could see. B. No because you can never get earnest money back. C. Yes, because Brandon couldn't have found this online. D. Yes, because this is unmarketable.

A is the best answer here because that's the law. Over the course of time C might replace A as the best answer, but not yet. B is wrong because you can get earnest money back if there was a failure to disclose. D is wrong because we have no information that Pukwudgie doesn't have good title.

Kyle, Trevor, Joe, Cole S. and Jacob decided to buy Club Coyote. They accept a quitclaim deed from X, the current owner. Later X and the owner before him, Y, claim to be the true owners of the land, and sue to eject our classmates. What will happen? A. X will lose the suit. B. X will be found to have violated the warranty of seisin. C. Y will be barred by a marketable title act. D. Y is violating a covenant of quiet enjoyment.

A is the best answer here. S will lose the suit because the quitclaim deed gave our guys all rights to the land that X had. B is wrong because X made no warrantees, that's the deal with a quitclaim deed. C is a possibility, but only if Y owned the land so long ago that it's past the requirement. If Y owned the land more recently, that statute will not protect our guys. Y is not violating any covenant because our guys got no covenants.

A homeowner orally granted his neighbor permission to use the homeowner's paved driveway, which was adjacent to the border between their two properties. The homeowner described the driveway's purpose and location to the neighbor in minute detail, and they shook hands upon their agreement. Did the homeowner convey an easement or a license?

A license, because the agreement was not in writing. In general, to expressly grant an easement, one must use a written instrument signed by the grantor, unless one of the exceptions to the statute of frauds applies. Here, there is no indication that an exception to the statute of frauds applies, so any agreement between the homeowner and the neighbor must be in writing and signed by the homeowner in order to create an easement.

A father owned a home that was situated on the southern end of his parcel of land. The land was bordered on the east, west, and south by heavily wooded lots with no access to public roads. A public road ran along the northern border of the land. The father subdivided his land into northern and southern parcels, and conveyed the northern parcel to his son. Following the subdivision, the father continued to own the southern parcel and live in his existing house on the southern parcel, while his son built a house on the northern parcel and lived there. The deed granting the son the northern parcel did not mention an easement or other right-of-way providing the father with access to the public road. Assuming that the father initially has an easement by necessity to cross over the northern parcel to access the public road, which of the following events would terminate that easement?

A new county road is constructed along the southern border of the father's parcel, but the route to the highway from the new road is thirty minutes longer than the route to the highway from the road that connects to the son's parcel. The general rule is that an easement by necessity terminates when the necessity giving rise to the easement ends. The construction of the new county road means that the father's parcel is no longer landlocked. Because there are alternative means for the father to access a public road, he no longer has an easement by necessity across the northern parcel.

Benefit of Easement Transfer

A transfer of the dominant estate includes the appurtenant easement. When the dominant estate is subdivided, all the lots enjoy the easement's benefit. At common law, an easement or profit in gross could not be transferred or subdivided. Courts now generally allow transfer of an in gross easement or profit if it is for commercial use, is quantifiable, or requires payments for its use.

Easement Definitions

An easement is a nonpossessory right to use another's land for a limited purpose. The easement holder is the dominant tenant. The owner whose land is subject to the easement is the servient tenant, and his land is the servient estate (also called the servient tenement). An easement is appurtenant when it benefits land (the dominant estate; also called the dominant tenement). The easement is in gross when it benefits a specified person. An affirmative easement entitles the dominant tenant to use the servient estate for a particular purpose. A negative easement entitles the dominant tenant to prohibit the servient tenant from engaging in otherwise privileged activity on his land. If the use is revocable at will, it is a license, rather than an easement. A profit authorizes its holder to enter another's land to remove a natural product, such as timber.

Burden of Easement Transfer

An easement's burden transfers with the servient estate. If the servient estate is subdivided, each parcel is subject to the burden, unless the easement has been confined to one area.

Land Use Restrictions

An owner might agree to restrict the use of his land by creating a real covenant or an equitable servitude. Courts were traditionally hostile to these restrictions due to fear they would impair productive use, but modern law recognizes their value in private land use planning, notably their use in enforcing CC&Rs.

Emily is building a new housing development with a golf course. She wants to build a path for golfers and others throughout the development, crossing through the back of several lots that will soon contain houses. Which of the following would be the best way for Emily to make sure those paths can always be used by the golfers? A. an implied easement for the golfers B. a license for the golfers C. an easement appurtenant with the golf course as the dominant estate D. an easement in gross for Emily

C is the easy winner. An easement appurtenant will run with the land and keep going, no matter who owns the houses. An easement in gross for Emily will be great for Emily, and not necessarily alienable to anyone else. A license is easily revoked, and an implied easement probably means you had to go to court to get it.

Zaraly, champion risk taker, decides to play it safe regarding a purchase of land. Which of the following arrangements offers her the LEAST risk? A. A purchase money mortgage B.An equitable mortgage C. A bank loan D. An unsecured loan

D is the best answer. If the loan is unsecured, the lender does not have an easy path to obtaining control over Zaraly's land. The other arrangements all give the lender some kind of easy access to owning the property if Zaraly fails to pay the loan. All the other answers have some risk for Zaraly, and they might be cheaper for her because the lender has less risk on their part.

Matthew was cruelly asked to leave the room after buying property. If Gabriel bought the same property while Matthew was out of the room, without knowing that Matthew just bought the property, and recorded his deed before Matthew, under which system might Matthew get to keep the property? A. race B. notice C. race-notice (which we think of as notice-race) D. none of them

D is the best answer. Matthew is stuck. He loses is a race jurisdiction because Gabriel filed first. He loses is a notice jurisdiction because Gabriel was a subsequent purchaser with no notice of Matthew's purchase. He loses in notice-race jurisdiction because Gabriel has no notice of Matthew's purchase AND Gabriel filed first.

Easements

Land cannot be used unless the owner has adequate access to it, which may require an easement across land owned by another. Although most easements are the product of agreement, courts will sometimes impose an easement without the consent of the burdened owner.

The eastern border of a homeowner's land ran along a large lake. For many years, the homeowner permitted a local scouting organization to access the lake by crossing through his land. The homeowner subsequently decided to bifurcate his land into two halves, and to sell the eastern half with lake access to a buyer. In the deed transferring the eastern half to the buyer, the homeowner reserved a right-of-way for the scouting organization to continue to cross over the land to reach the lake. If the land is in a jurisdiction adopting the majority approach, does the buyer have to honor the scouting organization's right-of-way?

No, because most jurisdictions do not recognize the reservation of easements in favor of third parties. A majority of jurisdictions absolutely forbid the reservation of easements in favor of third parties. Here, since the land is in a jurisdiction adopting this majority approach, the buyer does not have to honor the scouting organization's right-of-way. The homeowner may not reserve an easement for the scouting organization, a third party, in the transaction selling the portion of his land with lake access.

A homeowner granted her neighbor the right to use a private pathway extending behind her house to a nearby public pool. The document memorializing the easement stated that the easement would last for five years. During the five-year term, the neighbor rented her home to her friend for several months. May the neighbor assign the easement to her friend during the term of the lease?

No, because the easement is for personal or recreational use. While the document creating the easement did not specify, the facts here suggest that the easement is in gross and not appurtenant. A durational limitation on an easement is a strong indication that the grantor did not intend for the easement to constitute an attribute of ownership of a dominant estate, and that the easement is therefore an easement in gross. The majority of courts have ruled that easements in gross for personal or recreational use (and not otherwise for any use geared toward financial gain) cannot be assigned.

Prescriptive Easement

The activities that created a prescriptive easement determine its scope. New and different activities can become privileged if continued for the time period for prescription.

Implied Easement

The circumstances that created an easement by implication determine its scope

Express Easement

The document that transfers the easement controls the permitted use. If it is silent concerning the scope of use, the dominant tenant may engage in activities reasonably related to the easement, including those related to the normal development of the dominant estate. The use must not unreasonably burden the servient estate. The dominant estate may not be enlarged

A homeowner granted her friend a right to cross through the homeowner's backyard to reach a nearby public park. Which of the following additional facts, if true, would most strongly support the conclusion that the homeowner granted her friend an easement in gross?

The friend holds no other interest in real property besides the easement. If, like the friend here, an easement holder owns no interest in property at all besides the easement itself, then the easement is definitely in gross and not appurtenant, because there can be no dominant estate.

Use by the servient tenant

The servient tenant may engage in any activities on the land that do not unreasonably interfere with the easement. He may permit third parties to use the easement area. He is not entitled to relocate an easement when the instrument that granted it specified its location.

A woman owned a large parcel of property that she subdivided into two parcels. The woman planned to keep the eastern parcel for herself and sell the western parcel. A gravel road on the western parcel connected the eastern parcel to the public road. When the woman sold the western parcel to a purchaser, the signed deed of conveyance stated that the western parcel was being sold subject to a right-of-way easement for the eastern parcel to allow the occupant of the eastern parcel access to the public road. The deed provided a description of both the western and eastern parcels, but it did not specify the location of the easement. What interest, if any, does the woman, as the owner of the eastern parcel, now have regarding the western parcel?

The woman has a valid easement across the western parcel for access to the public road. An instrument purporting to convey an easement must satisfy several formalities. It must: (1) be signed by the grantor; (2) describe the particular rights conveyed with sufficient clarity that reasonable people can understand it; and (3) describe a specific servient estate, which is in existence at the time of the conveyance. It is also useful for the deed to describe the purpose and scope of the easement and the dominant estate. It is not necessary to describe the location of the easement, as long as it is discernible from the circumstances, and the purpose and terms of the easement. Here, the woman's reservation of the easement satisfies all the requirements. It is signed, adequately describes the nature of the easement as a right-of-way, and describes both the servient and dominant estates. Although the deed does not specify the location of the easement, the nature of the easement as a right-of-way and the existence of a private gravel road on the western parcel are sufficient to allow a court to discern the easement's location.

A mother lived in a house on the eastern edge of her property. Her property was bordered on the east, north, and south by government-owned forest preserves. A driveway extended from the mother's garage to the western edge of her property, linking the house to the public road. The mother decided to subdivide her property into eastern and western parcels. The mother maintained ownership of the eastern parcel where her house was located, and conveyed ownership of the western parcel to her daughter. At the time of the conveyance, the daughter expressed concern about making sure her mother could still use the driveway, even if the daughter ultimately sold her parcel to someone outside the family. The mother reassured her that, as the driveway was the only way she could access the public road, she would always have some kind of easement. Five years after the conveyance, the daughter sold her parcel to a buyer. The government then constructed a public road that connected with the southern border of the mother's parcel. However, it would cost $25,000 to relocate the mother's driveway to connect it with the new road to the south. In a jurisdiction applying the "always reasonable" approach to necessity for implied easements, may the mother continue to use the driveway extending through the buyer's property (i.e., the western parcel)?

Yes, because the mother still has an implied easement. The mother has an implied easement to use the existing driveway. The driveway existed before the division of the parcel. The driveway was apparent, because a reasonable inspection of the property would put a reasonable person on notice of the possible existence of the servitude, and therefore prompt further inquiry. In addition, the servitude (that is, the driveway) was "continuous" because it amounted to a permanent alteration in the land itself, and the mother used it regularly. Finally, the driveway meets this jurisdiction's "always reasonable" requirement for necessity, because alternatives to the existing driveway, like relocating it to meet the new road to the south, would require disproportionate expense. Most jurisdictions require strict necessity for easements by necessity. "Strict necessity" means absolute necessity. If there is an alternative way for the owner of the landlocked parcel to access a public road other than an easement by necessity, then she must use that alternative, even if it is more expensive and inconvenient. An easement by necessity exists only so long as the necessity exists. When alternative means become available, the easement terminates unless there is another basis for recognizing it. Therefore, once the government constructed a public road linking to the southern edge of the mother's property, she no longer has an easement by necessity

A man owned a large parcel of property with a small lake on it. A woman who owned the adjacent parcel entered onto the man's property without his permission to swim in the lake and read by the lakeshore. The woman took the same route through the man's property to reach the lake. After five years of using the same route, the woman had worn a path through the man's property that many other neighbors noticed and began to use themselves to reach the lake. The path could have been discovered upon a reasonable inspection of the property. However, the man lived out of state full time. Twelve years after the path was worn in, the man visited the lake briefly, and noticed a used sunscreen bottle, sunglasses, and old magazines and newspapers. Two years later, the man consulted a lawyer about barring the woman. The statutory period of prescription in the controlling jurisdiction was 10 years. Is the woman's use of the man's property open and notorious for the statutory period, as required for a prescriptive easement?

Yes, because the path could have been discovered upon a reasonable inspection of the man's property. The purpose of the open and notorious requirement is to put the true owner on notice that someone else is laying claim to the property. Open and notorious possession is determined objectively and may be satisfied by: (1) the true owner's actual knowledge of the use; (2) use that would be apparent upon a reasonable inspection of the property, even if not actually known to the true owner; or (3) use that is generally known to the community or to those who might be reasonably expected to tell the true owner. Here, the woman's use of the man's property caused a path to be worn through it. The path could have been observed upon a reasonable inspection of the property for at least twelve years, longer than the statutory period of ten years. The path was also used by many other neighbors, indicating that the use was generally known to the community. Because the woman's use of the man's property could have been discovered upon a reasonable inspection and was generally known to the community for at least twelve years, the use was open and notorious for the statutory period.