Hypo Questions Flashcards
O, owner of Blackacre, executes and delivers a deed for Blackacre to her daughter, A, as a gift. Subsequently, O tells A that she would like Blackacre back, and A, a dutiful daughter, hands the deed back to O and says, “The land is yours again.” O tears up the deed. Who owns Blackacre?
A owns Blackacre. Since title passed to A by the deed from O, the Statute oxqf Frauds requires a deed from A to O signed by A to pass title back to O.
On July 1, Oscar conveys Blackacre to Alice. On July 4, Alice records the deed, which is properly indexed. A few weeks later, on July 20, Oscar conveys Blackacre to Bob for valuable consideration. Bob has no actual knowledge of the earlier conveyance to Alice.
The next day (July 21), Bob records the deed.
Who wins in a notice statute jurisdiction? Why?
Who wins in a race-notice statute jurisdiction? Why?
Alice prevails because Bob had record notice of the conveyance from Oscar to Alice.
Alice prevails because Alice did not have notice of any prior interests and won the race to record against Bob.
- On March 2, Oscar conveys Blackacre to Austin. Austin then moves his motor home on the property a few days later, but he doesn’t actually move into the house on Blackacre. On April 1, Oscar conveys to Badri for valuable consideration. Badri has no actual knowledge of the conveyance to Austin. Badri records his deed the next day, on April 2. Austin finally gets around to recording his deed on April 15, the day after he moves into the house on the property.
Who wins in a notice statute jurisdiction? Why?
Who wins in a race statute jurisdiction? Why?
Race notice?
Austin “should” prevail here because he took possession of the property and moved his motor home on the property. That act should show possession and would likely put Badri on inquiry notice that there might be a competing interest in the property.
Badri would win in a race jurisdiction because Badri recorded first. Notice doesn’t impact anything in race jurisdictions.
Austin would likely prevail over Badri because Badri is probably on inquiry notice of Austin’s claim because Austin possessed the property. So since Badri has inquiry notice, he cannot win the race to record.
- On September 15, Olivia conveys Blackacre to Amy, who still has a month on her apartment lease, so she does not take possession of the property. A week later, on September 22, Olivia then conveys to Barb. Barb has no actual knowledge of the conveyance to Amy. Barb records her deed on Sept 24. Amy records her deed on September 25.
Who wins in a race statute jurisdiction? Why?
Who wins in a notice statute jurisdiction? Why?
Who wins in a race-notice statute jurisdiction? Why?
Barb wins because Barb was the first to record
Barb wins in a notice jurisdiction because they had no actual, inquiry, or record notice of Amy’s interest.
Barb wins in a race-notice jurisdiction because Barb had no notice of Amy’s interest and won the race to record.
O mortgages Blackacre to A, but does not record the interest. O then later conveys Blackacre to B, who does not know of the mortgage.
What happens at common law?
Under most recording acts?
At common law, B takes the land subject to A’s mortgage because title was determined (at common law) by the timing of the conveyance, and A got a mortgage on Blackacre first.
Under most recording acts, a subsequent bona fide purchaser is protected against prior unrecorded interests. So B would be protected.
Important: The common-law rule of “first-in time, first-in right” continues to control UNLESS the person can qualify under the state’s recording act (which most people can).
- On April 1, Owen conveys Blackacre, a rural piece of farmland with no house, to Art, who doesn’t move into the property. Two weeks later, on April 15, Owen conveys a mortgage in his property to Banks, who does not know about the conveyance to Art. Art then records his deed to Blackacre on April 16. On the next day, a Saturday, Art conveys Blackacre to Charlie, who plans on turning the farmland into a subdivision. Charlie does not know about the mortgage to Banks. Two days later, on Monday, Banks records the mortgage interest.
Does Charlie take Blackacre subject to the mortgage interest to Banks in a race jurisdiction? Why?
Would Charlie take subject to the mortgage in a notice jurisdiction? Why?
Would Charlie take subject to the mortgage in a race-notice statute jurisdiction? Why?
Charlie would take Blackacre subject to the mortgage because Art prevails over Banks by recording before Banks did. Thus, Charlie is protected by the shelter rule
Charlie would prevail in a notice jurisdiction because he had no notice of Banks’s interest.
Charlie would win in a race-notice jurisdiction because of the shelter rule. Art would win over Banks in a race-notice jurisdiction because Art did not have notice and recorded first. Thus, since Charlie took title from Alex, Charlie is protected by the shelter rule.
O, owner of Blackacre, conveys Blackacre to Alice, who does not record the deed. O subsequently conveys Blackacre to Bob for valuable consideration. Bob has NO knowledge of Alice’s deed.
Who wins under a notice jurisdiction?
A race-notice jurisdiction?
In a notice jurisdiction, Bob prevails even though Bob did not record the deed from O.
In a race-notice jurisdiction, whether Alice or Bpb wins depends on whether O delivered Alice’s deed or Bob’s deed first.
But this allegation of delivery of the deed becomes irrelevant in a race-notice jurisdiction if one of the deeds has been recorded. Then that person wins.
- May 1 O conveys to A.
May 12 O conveys to B. B is aware of the earlier conveyance to A.
May 13 B records.
May 15 B conveys to C. C has no actual knowledge of the conveyance to A.
May 17 A records.
May 20 C records.
May 25 A sues C for possession and title.
Who wins in a race statute jurisdiction? Why?
Who wins in a notice statute jurisdiction? Why?
Who wins in a race-notice statute jurisdiction? Why?
C would prevail in a race jurisdiction because C got title from B, who won the race to record over A.
Even though B would lose if A sued B, C prevails over A because C was the last purchaser for value without notice of A’s interest. The chain of title would not show A’s interest since A did not record until after C got the property.
A would prevail in a race-notice jurisdiction because A had no notice of any transaction before buying and won the race over C. B’s recording wouldn’t help here because B had actual knowledge of A’s interest, so they were not “a contestant in the race to record.”
O, owner of Blackacre, conveys Blackacre to Alice, who does not record the deed. O subsequently conveys Blackacre to Bob for valuable consideration. Bob has NO knowledge of Alice’s deed. But after O’s conveyance to Bob and BEFORE Bob records, Alice finally records her deed. Thereafter, Carl purchases Blackacre from Bob.
Would Carl prevail over Alice in a notice jurisdiction?
Yes, even though Alice’s recording puts Carl on notice as to Alice’s deed, Carl has no idea whether Bob had notice of Alice’s deed when Bob purchased, which is the main inquiry. This is known as the shelter rule.
Under the shelter rule, a person who takes from a bona fide purchaser that is protected by the state’s recording act has the same rights as the person they bought the property from. (Thus, Carl is protected if Bob was protected.)
O conveys Whiteacre to Alice, who does not record. O subsequently conveys to Bob, who purchases in good faith and for valuable consideration, but does not record. Alice then records. The day after, Carl purchases in good faith and for valuable consideration. Bob then records. Carl then records.
Who prevails under a notice statute?
A race-notice statute?
Carl prevails in a notice jurisdiction. Bob would prevail over Alice because Bob is a subsequent BFP. But Carl would prevail over Bob because Carl had no notice of Bob’s claim.
Carl also prevails in a race-notice jurisdiction. Alice prevails over Bob because Bob did not record before Alice. So Alice can convey good title to Carl.
Note: Even if Carl had notice of Bob’s claim, Carl would prevail over Bob because of the shelter rule.
In a deed, Wendy agrees not to permit trees to grow on her property that are more than 30 feet tall in order to preserve the view that Mary has over Wendy’s land.
Is this an affirmative or negative easement?
It can be both depending on who is doing the tree trimming. It is a negative easement if Wendi will do the tree trimming. But if Mary is permitted (in the deed) to enter Wendi’s land and do the tree trimming, then it is an affirmative easement.
Mary has an easement of way through a building on Wendy’s adjacent land. Wendi later demolishes the building and builds a new, state-of-the-art building.
(1) Could Mary use her easement to prevent Wendy from demolishing the building?
(2) If not, does Mary’s easement of way transfer to the new building?
No. She has an affirmative easement because she is allowed to cross Wendy’s property. She would need a negative easement to prevent the building of the building, which is not what she likely has in the easement of way.
It depends on whether Mary’s easement is appurtenant to the land and not the structure. The language in the easement would control. If it were an easement of way over Wendy’s land, then it would extend to the new building.
Justine decides to sell part of her cow farm to Cody. She sells the north 40 acres and the barns to Cody, but she keeps ownership of the 50 cows that currently occupy that north 40 acres. She’s worried her cows won’t get appropriate watering because Cody is known not to treat his slaughter cows very well, but she doesn’t have enough room for them in her remaining acreage, so she reserves an easement “for the watering of livestock owned by seller.”
Is this an easement appurtenant or an easement in gross?
The court in the actual case this hypo was taken from held that this vague language created an easement appurtenant, which attached to the neighboring land the seller still owned. It didn’t just attach to Justine personally.
Lindsey gives Oscar $1000 for a license giving Lindsey the right to cut timber on Blackacre. Does the money turn Lindsey’s right into an easement?
What happens if Lindsey assigns her rights to Peter?
No. O’s permission is just a license. We often pay for licenses (e.g. video games; computer programs)
In the majority of states, the assignment would be null.
Oscar leases Blackacre to Tom for the sole purpose of Tom’s timbering of the property. Why would Tom prefer a lease over a profit (easement) or a license?
Because a lease is a possessory interest in land, so it gives Tom an exclusive right to use the land for the term of the lease. Any other leasee’s must be approved by Tom. Thus, he can exclude his competitors.
A license or an easement are non-possessory rights, so the use doesn’t need to be exclusive unless it is expressly made to be exclusive.
Alex owns a landlocked parcel with an easement of necessity over Wendy’s land. But because Wendy always gives him a mean look when Alex uses this right of way, he decides to buy a piece of land at auction that allows him to reach a public road without going on Wendy’s land. He later sells that newly purchased strip of land for 10 times what he paid for it, and then he resumes using Wendy’s land.
Can Wendy prevent Alex from doing this?
Yes. Easements by necessity end when the necessity ends. Thus, the necessity ended when Alex bought the strip of land.
Alex’s sale of the strip of land doesn’t make it necessary again. The necessity has to arise out of the severance of the joint property.
Right next to Wendi’s home is a golf club. Every day, several golf balls are driven onto her property, and the players routinely come onto Wendi’s property to retrieve the golf balls. If this continues for the statutory period, will the golf club acquire a prescriptive easement over Wendi’s property?
Yes! This actually happened to Conrad Hilton (of Hilton Hotels fame), and he lost.
How to prevent this?
Erect a fence to interrupt/stop people from getting the golf balls – or get a written agreement with the club to ALLOW/permit them to get the balls, which would negate the hostility element.
Eric owns Blackacre. He records a deed with himself naming himself the grantee of an easement for a road over Blackacre (from adjacent property that he also owns). Is this easement valid?
No.
Rule: A person cannot create an easement in their own property.
Kyle deeds to his next-door neighbor, Tim, the right to park in his parking lot, which gives Tim an easement. But Tim then sells his home to his sister, and moves five miles away. When Tim comes to visit he continues to park in Kyle’s lot, and Kyle doesn’t object. But Kyle does object when Tim’s sister parks in his lot. What would Kyle’s best argument be for this discrepancy?
That this is an easement in gross that only was intended to benefit Kyle, no matter where he lived. Tim’s sister would argue that the intent was for an easement appurtenant, which benefits the land. Thus, when she bought Tim’s property, she now gets the benefit of the easement.
Courtney owned two adjoining lots with existing houses on them. She sold one to Natalie. A driveway and a sewer line ran from Natalie’s new house to the street. After the sale, part of the driveway and part of the sewer line ran over (and under) Courtney’s lot. The deed conveying the lot to Natalie did not mention the driveway or sewer line. Does Natalie have a right to continue using the drive or sewer line?
Yes, if she can show all the elements of an easement by prior use. (1) There was unity of ownership that was severed. (2) the use was likely in place before the severance. (3) the use was visible for the driveway and apparent for the sewer; and (4) it is likely reasonably necessary to use the lot for a residence.
The deed from Matt to DeMarr, which land-locks DeMarr’s property provides for access to DeMarr’s land over a strip of Matt’s land that is narrow, steep, and very inconvenient for DeMarr to use. DeMarr later protests that he needs better access and asserts a way of necessity. Is DeMarr likely to get an easement by necessity? Why or Why not?
No. There must be strict necessity in most jurisdictions – that means no access. Inconvenient access isn’t good enough, especially in situations where an easement of way was already bargained for in the land transaction.
O in 1900 granted E an easement appurtenant over O’s land so E could reach a public road. In 1900, both properties were rural, and travel was by foot, horse, and buggy. 100 years later, O’s successors and E’s successors own the respective properties. Are E’s successors limited to using foot, horse, and buggy to travel over the dirt-path easement?
No. Cars, trucks, and motorcycles are natural developments, so the scope of the easement will likely be adjusted to accommodate progress.
Farmer Ted sold Erin a landlocked lot – Lot 36. In the deed, Farmer Ted deeded Erin a ten-foot-wide easement for ingress and egress over Lot 24, which allowed Erin to reach Cove Road. Farmer Ted continued selling lots. A year later, he deeded Lot 24 to Wilbur, subject to Erin’s easement of way. A year after that, Erin purchased Lot 35, which adjoins her lot and fronts High Street. Wilbur has always wanted to get rid of the easement over his lot.
Does the easement over Wilburn’s lot end when Erin buys lot 35?
No. This was an express easement that was granted in Erin’s deed – not an easement created by necessity. So even though the necessity ended, that doesn’t impact her express easement over Lot 24.
(Know this one)
Farmer Ted sold Erin a landlocked lot – Lot 36. In the deed, Farmer Ted deeded Erin a ten-foot-wide easement for ingress and egress over Lot 24, which allowed Erin to reach Cove Road. Farmer Ted continued selling lots. A year later, he deeded Lot 24 to Wilbur, subject to Erin’s easement of way. One year later, Wilbur sells his property (with a home on it) to Erin, who moves into Wilbur’s home. Six months later, she finally finds a buyer for Lot 36, so she sells it by quitclaim deed (where she doesn’t mention anything about the easement). Is her original easement still in existence?
No. The easement terminated when Erin bought Wilbur’s lot because she owned both the dominant and servient estates – and you cannot have an easement in your own property.
Note: They buyer may have to sue to try and get an implied easement by necessity.
Martha and Howie are neighbors. Their houses are directly across the street from each other. Howie has a bright, almost neon, red front door. His house is gray. The red door is such a stark contrast to the rest of the house that Martha wonders how anyone could have such poor taste. Martha calls a neighborhood meeting and gets the Stewartsville City Council to adopt an ordinance based on aesthetics, which requires Howie to repaint his front door a more conforming color the next time it needs painting. When Howie repaints his door, he refuses to comply – painting it the same color as before. So the city sues. What is the likely result under the traditional approach? The modern approach?
Howie wins under the traditional approach because attempts to regulate aesthetics were not allowed.
Howie has a good chance of winning under the modern approach too because aesthetic zoning must be reasonable. Would a regulation outlawing door colors be reasonable, or is Martha just being hypersensitive?
Acme Housing, a non-profit corporation, wants to build a federally subsidized low-income housing project in Valleytown, an affluent, nearly-all-white suburb. Valleytown refuses to rezone the site of the proposed project from single-family residential to multi-family, mainly because the property values near the project would drop sharply. A majority of the families who would qualify for the housing project are African-American. If the zoning scheme is attacked in federal court for being exclusionary and in violation of the constitution, who will prevail?
A) Acme housing, because the exclusionary zoning and refusal to rezone has a racially discriminatory effect.
B) Acme housing, because the exclusionary zoning and refusal to rezone is sufficient evidence of a racially discriminatory intent.
C) Valleytown, because there is insufficient evidence of a racially discriminatory intent, and discriminatory effect alone is not enough.
D) ACME Housing, because the exclusionary zoning and refusal to rezone does not substantially advance a legitimate public interest.
C
You own two 10-acre parcels, and the local government decides to condemn one of the parcels and take it through eminent domain. The government’s use of that “taken” 10-acre parcel will substantially reduce the value of the other 10-acre parcel still in your hands. How is just compensation computed in this situation? What if the “taking” reduced the amount the other parcel appreciated in value, but did not reduce its actual value?
Substantial reduction of value is compensable. (Trivial reduction is not.)
State v. Doyle states that “loss of appreciation of property is compensable if it represents value that would have been realized as of the date of taking, if the taking had not occurred.”
Conservatown seeks to use its condemnation powers to take your property. Your property is currently zoned for any type of use (industrial, commercial, residential). The town does not want to pay the market rate for your very flexibly zoned property, so they change the zoning ordinance to zone your property (and other property around it) as residential only, which will reduce its FMV because it can’t be used commercially. What’s the just compensation here?
The vast majority rule is that an ordinance enacted solely to reduce a municipality’s acquisition costs is invalid.
But, practically, the condemnee faces a considerable burden in proving that the ordinance has no other legitimate purpose behind it.
The City of Callaway enacted a statute that prohibits building additionally stories on historic landmarks without prior approval from the Historic Preservation Control Board. The statute then designates 100 properties as Callaway landmarks. Thereafter, Kyle, a Trump-like developer, buys one of the commercial buildings that is designated as a landmark. He wants to build a 50-story building on top of the existing landmark structure. The Board, however, denies all of his proposals, so Kyle sues, saying that landmark statute is a taking. Does the fact that the statute was enacted before Kyle bought the property preclude a takings claim?
No. Notice of a statute does not prohibit a takings claim. Notice of a restriction does not make a statute any less unconstitutional if the court deems it so. But it would be a factor in the ad hoc balancing.
A state law restricting wetlands development allowed an owner to build only one house on his 18-acre parcel of land, which reduced its value from $3.1 million to $200K – a 94% decrease. Does this amount to a taking under the total wipeout rule?
No. SCOTUS in Palazzolo v Rhode Island, held that this was not a Lucas-type taking. “A regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property economically idle.”
- On July 1, Oscar conveys Blackacre to Alice. On July 4, Alice records the deed, which is properly indexed. A few weeks later, on July 20, Oscar conveys Blackacre to Bob for valuable consideration. Bob has no actual knowledge of the earlier conveyance to Alice.
The next day (July 21), Bob records the deed.
Who wins in a notice statute jurisdiction? Why?
Who wins in a race-notice statute jurisdiction? Why?
Alice prevails because Bob had record notice of the conveyance from Oscar to Alice.
Alice prevails because Alice did not have notice of any prior interests and won the race to record against Bob.
- On September 15, Olivia conveys Blackacre to Amy, who still has a month on her apartment lease, so she does not take possession of the property. A week later, on September 22, Olivia then conveys to Barb. Barb has no actual knowledge of the conveyance to Amy. Barb records her deed on Sept 24. Amy records her deed on September 25.
Who wins in a race statute jurisdiction? Why?
Who wins in a notice statute jurisdiction? Why?
Who wins in a race-notice statute jurisdiction? Why?
Barb wins because Barb was the first to record.
Barb wins in a notice jurisdiction because they had no actual, inquiry, or record notice of Amy’s interest.
Barb wins in a race-notice jurisdiction because Barb had no notice of Amy’s interest and won the race to record.
- On April 1, Owen conveys Blackacre, a rural piece of farmland with no house, to Art, who doesn’t move into the property. Two weeks later, on April 15, Owen conveys a mortgage in his property to Banks, who does not know about the conveyance to Art. Art then records his deed to Blackacre on April 16. On the next day, a Saturday, Art conveys Blackacre to Charlie, who plans on turning the farmland into a subdivision. Charlie does not know about the mortgage to Banks. Two days later, on Monday, Banks records the mortgage interest.
Does Charlie take Blackacre subject to the mortgage interest to Banks in a race jurisdiction? Why?
Would Charlie take subject to the mortgage in a notice jurisdiction? Why?
Would Charlie take subject to the mortgage in a race-notice statute jurisdiction? Why?
Charlie would not take Blackacre subject to the mortgage because Art prevails over Banks by recording before Banks did. Thus, Charlie is protected by the shelter rule because Art (the person Charlie got the property from) would prevail over banks.
Charlie would prevail in a notice jurisdiction because he had no notice of Banks’s interest.
Charlie would win in a race-notice jurisdiction because of the shelter rule. Art would win over Banks in a race-notice jurisdiction because Art did not have notice and recorded first. Thus, since Charlie took title from Alex, Charlie is protected by the shelter rule.
- In November 2012, Jennifer purchased 100 acres of land from John. She did not record her purchase. In December 2012, Jennifer’s ex-husband, Mark, purchased the same 100 acres from John, knowing that Jennifer had already purchased that land. Mark immediately recorded his deed to the property.Mark owns the land in which of the following jurisdictions?
a. In a jurisdiction that has a “race-notice” statute.
b. In a jurisdiction that has a “race” statute.
c. In a jurisdiction that has a “notice” statute.
d. He will not own the land no matter what type of recording statute the jurisdiction has.
- b. “In a jurisdiction that has a “race” statute.” Mark had knowledge of the earlier transaction to Jennifer, so he can’t win in a notice or race-notice jurisdiction, but he can win in a race jurisdiction because he recorded first, and his knowledge doesn’t matter.
- Sally conveyed to Betty a single-family home on a half-acre lot by warranty deed. Two days before closing, however, Sally had a jury return a $100,000 verdict against her for negligence, in an unrelated matter. The judgment was recorded against the property in a notice of lis pendens that same day as a lien against Betty’s property. Sally paid the judgment out of the proceeds from the sale of the house, but no one picked up on the fact that the lien was still recorded against the property. Several years later, Betty wanted to sell the house, but the lien still showed up on the abstract of title, and no title insurance carrier would insure it. The statute of limitations on the present warranties has run.
What are Betty’s options against Sally at this point in time?
a. Betty can rescind her contract because the title was unmarketable.
b. Betty can sue under one of the present title warranties because the statute of limitations did not begin to run until she discovered the problem.
c. Betty should seek a remedy under the covenant for further assurances, which would force Sally to do what was needed at the courthouse to remove the lien.
d. Betty can do nothing.
- c. “Betty should seek a remedy under the covenant for further assurances, which would force Sally to do what was needed at the courthouse to remove the lien.” This is the exact type of thing that the covenant of further assurances is there for – to help force a past buyer to do whatever is necessary to make the transfer of property go through as intended which, in this case, was to convey title without a lien on it.
3.Chelsea is a new town that has just incorporated, breaking off from the unincorporated sections of New London, State of Nirvana. One of the first orders of business for the new town is to establish a planning department and zoning scheme. After much research and analysis, the city council votes to zone the western half of Chelsea as a residential-apartment-building zoning district, which allows for cumulative uses. Thereafter, A, B, C, D, and E each purchases and develop lots in the western half of Chelsea. A builds a single-family home. B builds a two-family duplex. C builds a small apartment complex. D builds a convenience shop down the street. E opens a used-car lot across the street.
Who is in compliance with the zoning ordinance (and assuming the standard classifications for Euclidean zoning)?
a. A & B
b. A, B, & C
c. C only
d. C & D
e. A, B, C, D, and E
- b. When zoning is cumulative, that means that other uses, which are “higher” are permitted, but those that are lower are not permitted. Here, we have residential apartments, so the higher use of single-family residences will be allowed, but not the lower uses for commercial or industrial purposes.
- Trudeau deeds to his next-door neighbor, Carelis, the right to park in his parking lot, which gives Carelis an easement. But Carelis then sells her home to Vinnie and moves five miles away. When Carelis comes to visit, she continues to park in Trudeau’s lot, and Trudeau doesn’t object. But Trudeau does object when Vinnie parks in his lot.
What would be Trudeau’s best argument to prevent Vinnie from parking in his lot?
a. Carelis had an express easement appurtenant, which did not transfer to Vinnie when she sold him her home.
b. Carelis had an implied easement by prior use, which did not transfer to Vinnie when she sold him her home.
c. Carelis had an implied easement by necessity, which did not transfer to Vinnie when she sold him her home.
d. Carelis had an express easement in gross, which did not transfer to Vinnie when she sold him her home.
- d. “Carelis had an express easement in gross, which did not transfer to Vinnie when she sold him her home.” This question tests whether you know what an easement in gross is and how it is different than an easement appurtenant. The easement in gross is given to a person, and it is unrelated to the property they own. So when Carelis moved, she would still have that easement in gross that was given to her – that right was not dependent on her owning the property next to Trudeau.
- Sam gives Joe an easement of way, which allows Joe to drive on Sam’s land that abuts up next to the southern boundary line of Joe’s property. A few years later, Joe acquires another property connected to his original property, and he wants to use Sam’s land for ingress and egress to that new property. Joe has another way on that new property, but it is more convenient to use Sam’s easement to access both his old property and his new property.Which of the following best describes whether Joe can do so?
a. No, Joe may not do so because the use would benefit a non-dominate estate and increase the scope of the easement.
b. No, Joe may not do so because there is no strict necessity to use Sam’s easement for access to the land.
c. Yes, Joe may do so because this use doesn’t unduly increase the burden on the servient estate.
d. Yes, Joe may do so because this is an express easement.
- a. “No, Joe may not do so because the use would benefit a non-dominate estate and increase the scope of the easement.” This is a key rule we just studied this week – that an easement holder may not expand the use of the easement to benefit another property (called a non-dominate estate). An express easement appurtenant can only be used to benefit the dominate estate.
- Jessie owns a popular restaurant. Its major attraction is that it has a lovely patio with an unobstructed view of the Japanese Gardens located in the nearby park. The mayor decides that the public would benefit from, and traffic congestion might be lessened by, a footpath connecting the Gardens to the public library located on the opposite side of Jessie’s restaurant. The path is developed immediately in front of Jessie’s patio, with only about one yard crossing onto a section of her unoccupied property. Very few people end up using the pathway. Because the intrusion was so minimal, the government offers no compensation.
Jessie sues to enjoin use of the section of the private pathway that crosses her property, or, in the alternative, for damages under inverse condemnation. The most likely result is which of the following?
a. The court will enjoin the use of the pathway because so few people use the pathway it fails to qualify as “public use” as required under the power of eminent domain.
b. The court will enjoin the use of the pathway because its claimed public purpose is questionable, and it unconstitutionally infringes on her reasonable, investment-backed expectations.
c. The court will not enjoin the use of the pathway as long as the city agrees to compensate Jessie for the city’s taking.
d. The court will not enjoin the use of the pathway, nor will it require the city to compensate Jessie because the claimed “takings” is not significant enough to warrant compensation.
- c. There is no doubt that there was a permanent physical occupation of some of Jessie’s property. The gov’t concedes that about one yard of its pathway crosses onto Jessie’s property. She lost her right to exclude as to that one yard, so this is a per se taking because of that physical appropriation of the property.
