Property II Ch 11

šNeil and Nadia are neighbors who live near the beach. Neil owns Blueacre, and Nadia owns Redacre. Neil does not have direct access to the beach and purchases the right to cross Nadia’s land. They enter into a valid written agreement granting “for the benefit of Blueacre, a ten-foot-wide right-of-way along the southern boundary of Redacre.” The interest created can best be described as:

• a. An express affirmative easement in gross.

• b. An express affirmative easement appurtenant.

• c. An express negative easement in gross.

• d. An express negative easement appurtenant

Answer explanation

An express easement is an easement that is in writing, meeting the Statute of Frauds. An affirmative easement is an easement that allows the person who holds the easement to use the servient estate in a certain manner (e.g., as a right-of-way). An easement appurtenant is an easement that benefits another parcel of land rather than benefiting a particular person. Here, this easement is in writing (express) and grants a right to use Redacre (affirmative). It is appurtenant because it was created to benefit Blueacre rather than an individual.

šOliver owns Blueacre, a completely undeveloped lot. Blueacre adjoins a public road on the east side of the lot and is completely inaccessible from each of its other three boundaries. Oliver dies, devising the land one-half to Alicia and one-half to Ben. Ben’s parcel abuts the public road and Alicia’s lot becomes landlocked. At Alicia’s death, Ben’s parcel became:

• a. A servient estate because of an implied reservation from Oliver.

• b. A servient estate because of necessity.

• c. A easement in gross.

• d. A prescriptive easement.

Answer explanation

Ben’s parcel becomes a servient estate because Alicia received an implied easement by necessity when Oliver died and devised the property to Alicia and Ben. An easement by necessity is implied when there is (1) unity of ownership (here, Blueacre was formerly owned in one piece by Oliver), (2) the easement is a necessity and not a mere convenience (here, Alicia is landlocked because the land is inaccessible one three sides and blocked from the public road by Ben’s parcel), and (3) the necessity existed at the time of the conveyance (here, the necessity was created when Blueacre was divided into two parcels with Oliver’s devise). A is incorrect because the parcel was completely undeveloped, thereby negating the argument that Oliver might have created a quasi-easement for the benefit of one portion of his land (the western half) for another another (the eastern half). C is incorrect because the easement by necessity is to benefit the land (making it an easement appurtenant), not to benefit Alicia personally. D is incorrect, because Alicia cannot meet the elements of prescription simply by being devised the property (facts do not indicate any usage, at the time of the devise, Alicia was not even using the land, etc.), and Oliver did not need an easement when the land was in his name (which negates any argument of tacking)

šBlueacre and Redacre are adjoining parcels of land. The two parcels have never been held under common ownership. Blueacre is owned by Andrea, and Redacre is owned by Brenda. Because Redacre is landlocked, Andrea gives Brenda permission to cross a dirt road on Blueacre to access Redacre. Brenda builds a house on Redacre. A year after the house is built, Brenda continues to use the road to access Redacre. After a dispute, Andrea blocks Brenda’s use of the road. If Brenda sues Andrea, who should win and why?

• a. Andrea, because the mere existence of the road does not imply an easement by prior existing use.

• b. Andrea, because licenses are revocable at the will of the licensor.

• c. Brenda, based on estoppel.

• d. Brenda, because Andrea’s permission created a license coupled with an interest (i.e., Blake’s interest in building his house).

Answer explanation

Licenses become irrevocable if expenditures are made in reliance on the license. Here, Brenda made expenditures in reliance on Andrea’s permission to use the road. Therefore, the license is irrevocable. Although it is true that the mere existence of a road does not create an easement implied by prior existing use (nor can one be created here because the lands were never jointly owned), A is incorrect because Brenda’s use of the road is based on an irrevocable license. B is incorrect because, although a true statement, there are two exceptions—licenses can become irrevocable by estoppel or if they are coupled with an interest. D is incorrect because the 8 license is not coupled with an interest. The “interest” refers to some shared property interest (e.g., a separate easement or property), not Brenda’s sole interest in developing her land.

šAmber and Blake are neighbors. Amber owns Blueacre, and Blake owns Redacre. Amber establishes an easement implied by necessity to cross Redacre to reach a public road. A year later, the city builds a road that abuts Blueacre. Due to the location of her house on Blueacre, Amber will be required to build a driveway over a ditch to reach the new road if she wishes to use it. Amber chooses instead to continue to cross Redacre. Blake blocks her entry onto his land. If Amber sues Blake, a court wouldlikely hold that:

• a. Amber’s easement implied by necessity terminates because the necessity no longer exists.

• b. Amber’s easement implied by necessity continues, because easements by necessity continue in perpetuity.

• c. Amber’s easement implied by necessity continues until Amber releases it to Blake.

• d. Amber’s easement implied by necessity will continue unless Amber abandons the use.

Answer explanation

Easements by necessity terminate when the necessity ends. The necessity is access to any public road because the land is landlocked. Here, when the city builds a public road that abuts Blueacre, the land is no longer landlocked. Therefore, the easement has terminated. It is irrelevant that the easement has not been expressly released or abandoned by Amber because the easement terminated when the necessity ended

šAxle owns Blueacre, a large parcel of land that abuts a public road on its western boundary. Blueacre has no other access to a public road. Axle builds a house on the eastern half of the land (Blueacre East). He begins to travel by car to and from the public road through the western half of Blueacre (BlueacreWest) on a daily basis. His use creates a dirt path that is apparent by visual inspection. Axle sells Blueacre East to Booker. The deed is silent as to access through Blueacre West. Booker, however, continues to use Blueacre West to access Blueacre East. One year after the sale to Booker, Axle sells BlueacreWest to Crystal. Crystal then purchases Blueacre East from Booker. She tears down the house on Blueacre East, which has fallen into disrepair, and begins farming the entire parcel of land, plowing up the driving path across BlueacreWest in the process. A few years later, she sells Blueacre East to Dodie. At all times during this problem, the only access to the public road is through Blueacre West. If Dodie immediately sues for an easement, a court will likely hold that:

• ša. Dodie holds an easement implied by prior existing use.

• šb. Dodie holds only an easement implied by necessity.

• šc. Dodie holds a license.

• šd. Dodie holds a prescriptive easement

Answer explanation

When Crystal purchased Blueacre West, any easement in the land extinguished because both the servient and dominant estates came into the hands of one owner. When Crystal sold Blueacre East to Dodie, an easement implied by necessity was created because both parcels had been united in the hands of one owner and the sale to Dodie created the necessity to reach the public road. A is incorrect because Dodie cannot establish the elements of an easement implied by prior existing use because the use has not been continuous or apparent since the path was plowed up. C is incorrect because a license with respect to real property is permission to enter another person’s land for a particular purpose. Here, there was no express permission for use of Blueacre West. D is incorrect because Dodie cannot establish any of the elements of prescription.

šAngela owns a parcel of land. One half (Redacre) is unimproved. On the second half (Greenacre), Angela builds a house, running a sewage line from the house across Redacre to a public sewer. Angela sells Greenacre to Monica. Although the deed does not mention the sewage line, the existence of the line is easily discoverable. In a jurisdiction that recognizes all types of implied easements, what type of interest did the conveyance from Angela to Monica create?

• ša. An easement implied by prior existing use across Redacre in favor of Monica.

• šb. A quasi-easement in favor of Angela.

• šc. An implied easement of necessity across Redacre in favor of Monica.

• šd. An implied reservation across Redacre in favor of Monica.

Answer explanation

An easement is implied from prior existing use if (a) the previous owner used one part of her land to the benefit of another (i.e., created a quasi-easement); and (b) the prior existing use was either known or might have been known by the purchasing party if it was apparent upon reasonably prudent investigation. Here, Angela used Redacre for the benefit of Greenacre by running the sewage line across it while she still owned both parcels. In addition, Angela probably knew about the line because she was the one who connected it to the public sewer, but if she didn’t, she is still charged with knowledge because it was easily discoverable. B is incorrect because Angela’s first use of Redacre for the sewage line before the land was sold to Monica created the quasi-easement, not the later-in-time conveyance, and it was the quasieasement that served as the basis for Monica’s easement implied from prior existing use. C is incorrect because there is no indication in the facts of a necessity to cross Redacre; therefore, A is a better answer. D is incorrect because Angela created an implied grant in favor of Monica (giving her a benefit and burdening Angela’s own land), not an implied reservation (which would involve giving Angela a benefit and burdening Monica’s land).

šArgyle owns Blueacre, a large parcel of land that abuts a public road on its western boundary. Argyle builds a house on the eastern half of the land and begins to travel by car to and from the public road through the western half of Blueacre (Westland) on a daily basis. Argyle’s use creates a dirt path that is apparent by visual inspection. Argyle sells the eastern half of the land (Eastland) to Belinda. The deed is silent as to access through Westland. Belinda, however, continues to use Westland to access Eastland. One year after the sale to Belinda, Argyle sells Westland to Charlie. Charlie sues to stop Belinda from crossing Westland. At all times in this problem, the only access to the public road is through Westland. Which of the following is a true statement?

• ša. Belinda can meet the elements for an easement by prescription to cross Westland.

• šb. Belinda can only meet the elements for an easement implied by necessity to cross Westland.

• šc. Belinda can meet the elements for an easement implied by prior existing use to cross Westland.

• šd. Belinda can meet the elements of both an easement implied by necessity and an easement implied by prior existing use to cross Westland.

Answer explanation

Belinda can make out the elements of both an easement implied by necessity and an easement implied by prior existing use. Easements implied by necessity require (1) unity of ownership and (2) strict necessity (3) that is created by severance of the estates. Here, Argyle previously owned both parcels of land, and the sale of Eastacre resulted in the land becoming landlocked. An easement implied by prior existing use generally requires (1) unity of ownership, (2) existence of a quasi-easement at the time of conveyance, and (3) use that has been continuous, (4) is apparent upon reasonable investigation, and (5) is reasonably necessary for enjoyment of the dominant estate. Here, Argyle previously owned the land, Argyle used Westacre for the benefit of Eastacre to access the public road, and that use was on a daily basis, apparent by visual inspection (according to the facts) and necessary for enjoyment of the property (because otherwise it would be landlocked). A is incorrect because an easement by prescription generally requires a longer period of time than one year of adverse use. Therefore, it is unlikely that Belinda can meet the statutory period for prescription.

•Anna is record owner of a parcel of land. She sells the eastern half to Buffy. In the deed, Buffy agrees “on behalf of herself, her heirs and assigns” that she will maintain the stone fence constructed on the land. Buffy records her deed. Anna sells her entire interest in the parcel to Colby. Buffy sells her entire interest in the parcel to Don. After a heavy flood, the fence begins to deteriorate and parts of it wash away. Don refuses to repair the fence. If Colby sues Don for damages, a court will likely hold for:

• a. Colby, because he can prove all the elements of a real covenant.

• b. Don, because Colby cannot show that the burden ran to Don.

• c. Don, because Colby cannot show he (Colby) held the benefit.

• d. Don, because Colby cannot show touch and concern.

Answer explanation

A real covenant requires intent for the covenant to run with the land, privity, touch and concern, and for subsequent purchasers, notice of the obligation. Here, Colby can show intent for the 9 covenant to run because the deed states that Buffy promises “on behalf of herself, her heirs and assigns.” Colby can show that the burden runs to Don because he can show that Anna and Buffy are in a grantor-grantee relationship (horizontal privity) and that Don held the same estate as Buffy (vertical privity of the same duration). Colby can show that the benefit ran to him because he holds the same estate as his grantor (vertical privity of any duration). This covenant touches and concerns the land because it deals with physical maintenance of the land. Touch and concern is generally thought of as affecting the use and enjoyment of the land. The more the covenant affects the physical land, the more likely it will be considered to touch and concern. Don also had notice of the covenant because it was written in Buffy’s deed, which was recorded.

•Astoria Development owns a large parcel of land in an unzoned area that Astoria subdivides into 500 separate lots for individual sale, creating Forest Park Subdivision. Astoria records the subdivision plan. For most of the lots sold, Astoria places the following provision in the deeds: “Grantee covenants and promises, on behalf of himself, his heirs and assigns, that Grantee shall restrict this lot to residential use for the benefit of all other lots in the Forest Park Subdivision. Grantee also promises to pay $100 per year to the Forest Park Homeowners Association for maintenance of common areas in the Forest Park Subdivision.” Astoria sells Lot 6 to Clark, whose deed does not contain the provision.

•Assume that a year later, Clark sells Lot 6 to Fossil Fuel, which plans to build a gas station on the lot. When it is enjoined from doing so, Fossil Fuel stops paying homeowner’s fees to the Forest Park Homeowners Association. If the Homeowners Association, which does not own a lot in the subdivision, sues Fossil Fuel based on the covenant, who will win and why?

• a. The Homeowners Association, even though it is not in vertical privity with Astoria, because it represents the interests of the homeowners.

• b. The Homeowners Association, because Fossil Fuel is in horizontal privity with Astoria Development and vertical privity with Clark.

• c. Fossil Fuel, because the Homeowners Association is not in vertical privity with Astoria Development.

• d. Fossil Fuel, because the Homeowners Association is not in horizontal privity with Astoria Development.

Answer explanation

Although the Homeowners Association is not in vertical privity with Astoria Development because it does not own a lot in the subdivision, in many jurisdictions it may still be able to enforce the covenant because the Association merely represents the homeowners who do own land and get the benefit of the covenant. B is incorrect because the issue is not whether the burden runs to Fossil Fuel (which is what this answer suggests), but whether the benefit runs to the Homeowners Association. C is incorrect because it is not the best answer. Even though technically the Homeowners Association is not in vertical privity with Astoria Development, in many jurisdictions, the Association would still be able to enforce the covenant because the Association represents the homeowners who do own land and get the benefit of the covenant. D is incorrect because horizontal privity is only required when a party is trying to prove that the burden runs with the land. Here, the burden lies with Fossil Fuel, so whether horizontal privity exists between the Homeowners Association and Astoria Development is irrelevant.

•Astoria Development owns a large parcel of land in an unzoned area that Astoria subdivides into 500 separate lots for individual sale, creating Forest Park Subdivision. Astoria records the subdivision plan. For most of the lots sold, Astoria places the following provision in the deeds: “Grantee covenants and promises, on behalf of himself, his heirs and assigns, that Grantee shall restrict this lot to residential use for the benefit of all other lots in the Forest Park Subdivision. Grantee also promises to pay $100 per year to the Forest Park Homeowners Association for maintenance of common areas in the Forest Park Subdivision.” Astoria sells Lot 6 to Clark, whose deed does not contain the provision.

•Assume instead that Clark never builds on his lot and the area remains unzoned. Twenty years later, Clark sells his land to Fossil Fuel, which plans to build a gas station on the lot. A number of the houses on the edges and on the inside of the subdivision have been abandoned. Several homeowners are using their houses for small businesses, including an automobile upholstery business run out of the owner’s garage, several in-home day care services, a car inspection business, and a few online computer distribution services. Further, a number ofhomes have been converted into boarding houses for college students, and along the two streets that abut Fossil Fuel’s lot, numerous stores have sprung up and the streets have been widened and become even busier. If Fossil Fuel were to seek to build a gas station on its lot, what is its best argument against an injunction?

• a. There is no horizontal privity between Astoria Development and Clark, so the burden does not run with the land.

• b. There is no vertical privity between Clark and Fossil Fuel, so the burden does not run with the land.

• c. Changes to the subdivision have occurred both inside and outside the subdivision and to such an extent that there is no real benefit to the residential use restriction.

• d. The area is not zoned.

Answer explanation

Under the doctrine of changed conditions, a court will not enforce an equitable servitude if conditions in the area have changed so thoroughly that there is no or substantially no value or benefit received from enforcing the servitude. Here, Fossil Fuel can argue that the changes are so great that there is no benefit left to enforcement of the servitude. A and B are incorrect because (1) Astoria is Clark’s grantor so there is horizontal privity; (2) there is vertical privity of the same duration because Clark sold the land to Fossil Fuel; and (3) the relief sought is an injunction so an equitable servitude is at issue, not a real covenant. D is incorrect because unless there is a conflict between them, a real covenant or equitable servitude will supersede a zoning ordinance if the covenant/servitude is more restrictive