MBE Property VI: Disputes about Land Use

Question 1

when fact pattern involves use of another’s land, consider:

Answer 1

1. was easement created?
2. what is scope of it, if so?
3. was easement terminated?

Question 2

appurtenant easement

Answer 2

tied to land

Question 3

in gross easement

Answer 3

personal to holder

Question 4

easement by necessity

Answer 4

generally created only when property is virtually useless (e.g., landlocked) without the benefit of an easement across neighboring property

both the dominant and servient estates must have been under common ownership in the past

Question 5

what type of easement does A have?

B owns an undeveloped parcel of land, which B subdivides into two lots. B sells one of the lots to A and retains the other lot for himself. The only access to a public road from the lot purchased by A is through the lot retained by B.

Answer 5

Even though the deed makes no mention of an easement across B’s lot and there has not been a prior path from A’s lot across B’s lot to the public road, A has an easement by necessity across B’s lot to the road.

Question 6

what type of easement does A have?

B owns an undeveloped parcel of land, which B subdivides into two lots. B sells one of the lots to A and retains the other lot for himself. B’s lot abuts the only public road in the area, while A’s lot does not have direct access to the road. However, A can purchase, for a reasonable price, an easement from C, the owner of another lot that adjoins A’s lot and, like B’s lot, has access to the public road.

Answer 6

A has an easement by necessity across B’s lot to the road because, while A has the opportunity to acquire access to public road, A does not have a legal right to access the public road through C’s lot.

Question 7

types of easement by implication

Answer 7

1. prior use (owner of two parcels prev used one to benefit the other; quasi -easement)
2. recorded plat

Question 8

easement by prescription

Answer 8

requires that the use is continuous, actual, open, and hostile for a specific period (e.g., 10 (many states), 15, or 20 years)

similar to AP but need not be exclusive

Question 9

easement by estoppel

Answer 9

Good-faith, reasonable, detrimental reliance on permission by a servient estate holder to make a limited use of her property can create an easement by estoppel if necessary to prevent an injustice.

Question 10

what type of easement?

A allows B to use a road on A’s land to gain access to B’s land, and B builds his house with the road being its main access point, improving the road with pavement and foliage. Thereafter, A tells B that he can use the road only if B pays $500; A closes off the road when B refuses.

Answer 10

B likely has an easement by estoppel because he relied on the ability to use the road when he built his house, and unjust enrichment may otherwise result.

Question 11

what happens to B’s easement?

B is the owner of an easement across A’s land for access to a beach. B does not like the beach and builds a brick wall across his land, blocking the entranceway to the easement.

Answer 11

terminated by abandonment

Question 12

what happens if express easement is granted but not recorded?

Answer 12

depending on the applicable recording act, the easement may not be enforceable against a subsequent purchaser of the servient estate

Question 13

requirements for easement to run with land

Answer 13

1. comply with SoF
2. must intent for Rs and duties to run with land (look for explicit language, or implication)
3. touch and concern the land (affects parties as owners of land)

Question 14

negative covenant

Answer 14

Negative covenants run with the land if they restrict the owner’s use or enjoyment of the land (e.g., a covenant not to use the property for vacation rentals).

Question 15

Affirmative covenants

Answer 15

Affirmative covenants run with the land if they require the owner to do something related to use and enjoyment of the land (e.g., a covenant to maintain a fence)

Question 16

estoppel by deed

Answer 16

prevents someone who knowingly transfers land by deed before they have good title from trying to reclaim land based on that defect

Question 17

shelter rule

Answer 17

protects the rights of a person who takes from a bona fide purchaser who is protected by the recording act - grantor’s rights ‘shelter’ their unrecorded grantees

Question 18

exception to shelter rule

Answer 18

purchaser who has notice of prior property interest cannot sell his property interest to a person w/o such notice and then buy back the property to gain the protection of the shelter rule

Question 19

in a notice statute state, a subsequent purchaser w/notice of a prior conveyance will still be protected if …

Answer 19

his grantor was a bona fide purchaser protected by the recording act

Question 20

three future covenants embodied in a general warranty deed

Answer 20

1. quiet enjoyment
2. warranty
3. further assurances

Question 21

covenant of future assurances

Answer 21

guarantees that grantor will do whatever is necessary to perfect title should it turn out to be defective (not recog in all states)

Question 22

covenant of quiet enjoyment

Answer 22

guarantees that grantee’s possession will not be interfered w by a third party’s lawful claim for title

Question 23

covenant of warranty

Answer 23

guarantees that grantee’s possession will not be interfered w by a third party’s lawful claim for title

Question 24

when might the owner of land not have the right to convey it?

Answer 24

a trustee holds legal title to land placed in a trust but might not be able to sell it b/c the beneficiary has equitable title to it