Property Learning Questions - Set 4 Flashcards
To acquire a prescriptive easement on property, the claimant’s use does not need to be __________.
A
continuous
B
adverse
C
exclusive
D
open and notorious
C
Exclusive use is not required in order to acquire a prescriptive easement. Acquiring a prescriptive easement is analogous to acquiring property by adverse possession, except that the use need not be exclusive (i.e., the user may share the use with the owner or other easement claimants). The use must be: 1. Open and notorious; 2. Adverse; and 3. Continuous and uninterrupted for the statutory period.
If an easement is said to be surcharged, this means:
response - correct
A
The easement holder paid valuable consideration to the servient landowner
B
The easement was terminated by operation of law
C
The easement’s legal scope was exceeded
D
The easement’s legal scope was interpreted to accommodate the holder’s future reasonable needs
C
If an easement is said to be surcharged, this means the easement’s legal scope was exceeded. The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement’s scope has been set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged. The servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.
If an easement is said to be surcharged, this does NOT mean the easement holder paid valuable consideration to the servient landowner, but rather that he exceeded its legal scope.
Which of the following acts will terminate an easement?
A
Voluntary destruction of the servient estate.
B
Nonuse of the easement for the statutory period.
C
Condemnation of the servient estate.
D
Use of the easement beyond its legal scope.
C
Condemnation of the servient estate will terminate an easement. The easement holder may be entitled to compensation for the value lost.
Use of the easement beyond its legal scope will not terminate an easement. Instead, the easement is surcharged, and the servient owner may sue to enjoin the use.
Nonuse of the easement for the statutory period will not terminate an easement. An easement can be extinguished by the easement holder’s physical act of abandonment (e.g., erection of a permanent structure over the easement). However, mere nonuse, even for a long period of time, is insufficient to constitute an abandonment of the easement. To terminate the easement, the nonuse must be combined with other evidence of intent to abandon it.
Voluntary destruction of the servient estate (e.g., tearing down a building to erect a new one) will not terminate an easement. On the other hand, involuntary destruction of the servient estate (e.g., by fire or flood) will extinguish the easement.
Is a long period of nonuse sufficient to terminate an easement?
A
No, because the release of an easement interest must satisfy the Statute of Frauds
B
No, because an easement may not be terminated by prescription
C
Yes, if it is accompanied by other evidence of intent to abandon the easement
D
Yes, if it continues for the statutory period
C
Yes, a long period of nonuse is sufficient to terminate an easement if it is accompanied by other evidence of intent to abandon the easement (e.g., the easement holder erects a permanent structure blocking off the easement). However, a long period of nonuse on its own, even if it continues for the statutory period, is insufficient to constitute abandonment.
An easement MAY be terminated by prescription. However, this is not accomplished through the easement holder’s nonuse. Rather, one must interfere with the easement through long continued possession and enjoyment of the servient estate in a way that would indicate to the public that no easement right existed. This is analogous to a landowner losing title to land by adverse possession.
Generally, the release of an easement interest must satisfy the Statute of Frauds. However, a release is only one way to terminate an easement. A release from the owner of the easement interest to the owner of the servient tenement is effectively a conveyance and must satisfy the formalities required to create an easement. By contrast, an easement may be abandoned if the holder manifests an intent never to use the easement again, evidenced by either physical acts or oral expressions of a desire to abandon accompanied by a long period of nonuse.
A landowner owned a large parcel of land in a rural area. He built his home on the northern half of the property, and developed a large orchard of fruit trees on the southern portion. A county road ran in front of the northern portion. To service his orchard, the landowner built a driveway directly from the county road across the northern portion of the property to the orchard. To provide electricity to his house, the landowner ran an overhead power line across the orchard property to hook up to the only available electric power pole located on the far southern side of the property.
Subsequently, the landowner conveyed the northern parcel to his brother and the southern parcel to his daughter, who said that she did not mind having the power line on the property. Recently, the brother has begun parking his car on the driveway, thus blocking the daughter’s access to the southern parcel. Finding no recorded document granting an easement for the power line, the daughter has decided to remove it.
If the brother is successful in preventing the daughter from removing the power line, what is the likely reason?
A The daughter knew that the power line ran across the land when she accepted the deed from the landowner.
B The brother’s alternative access to power is much less convenient and would cost 100 times as much.
C The daughter told the landowner that she did not mind having the power line on the property.
D The daughter is acting in retaliation against the brother for blocking the driveway, and not in any good faith belief that she has the right to remove the power line.
B
If the brother is successful in preventing the daughter from removing the power lines, it will be because the brother’s alternative access to power is much less convenient and would cost 100 times as much as the current arrangement. This helps to prove that there was an easement implied by operation of law (“quasi-easement”). An easement may be implied if, prior to the time the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and a court determines that the parties intended the use to continue after division of the property. To give rise to an easement, a use must be apparent and continuous at the time the tract is divided. In this case, the landowner used the servient part of his property (the southern parcel) to run an overhead power line to the dominant part of his property (the northern parcel). Overhead wires are clearly visible and would be readily discoverable on reasonable inspection. The lines are, therefore, apparent. The use must also be reasonably necessary. Whether a use is reasonably necessary depends on many factors, including the cost and difficulty of the alternatives. This use was reasonably necessary to the enjoyment of the dominant parcel because electricity is important to the enjoyment of the property, and the cost (100 times as much) and difficulty of the alternatives are excessive. Thus, the fact that the use of the southern parcel is reasonably necessary would bolster the brother’s case. (A) is wrong because the daughter’s actual knowledge is irrelevant. The daughter need not be aware of the use; it need only be shown that the use was apparent (see above). (C) is similarly wrong. Oral statements made to the grantor after the northern parcel had been conveyed have little effect. They show the daughter’s knowledge, but as discussed above, that has little relevance with respect to an implied easement. (D) is wrong because the daughter’s motive for removing the power line is also irrelevant. If no easement is established, the daughter may remove the lines for whatever reason she likes. If, however, the requirements for an implied easement are satisfied, the daughter may not remove the lines regardless of how good her reasons are.
A landowner and her neighbor owned adjoining parcels of land. The landowner’s property was situated to the west of the neighbor’s property. A highway ran along the east of the neighbor’s property. Twelve years ago, the landowner asked the neighbor if it would be all right for the landowner to use an eight-foot strip along the northern part of the neighbor’s land to access the highway. The only other way for the landowner to get to the highway was to use a one-lane unpaved road that meandered through the woods for two miles. The neighbor agreed, and the landowner used the strip of land regularly to access the highway. The statutory period for adverse possession in this jurisdiction is 10 years.
What is the landowner’s interest in the neighbor’s eight-foot strip of land?
A An easement appurtenant.
B An easement by necessity.
C An easement by prescription.
D Not an easement.
D
The landowner’s interest in the neighbor’s eight-foot strip of land is not an easement. In effect, the landowner only has a “license” (i.e., a revocable privilege) to use the land. The answer is best reached by the process of elimination. Because an easement is an interest in land, the Statute of Frauds applies. Here, the agreement between the landowner and the neighbor was not in writing; thus, the Statute of Frauds requirements for the creation of an express easement were not met. Therefore, (A) is incorrect. (B) is incorrect because an easement by necessity is created when the owner of land sells a part of it and deprives the part sold of access to the public road. Here, the facts do not indicate that the landowner’s and the neighbor’s parcels were once part of a common tract, and the landowner has an alternate, albeit inconvenient, way to access the highway—the one-lane road. Thus, the landowner does not have an easement by necessity. (C) is incorrect because the landowner’s use of the land was permissive. To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period. Although the landowner used the strip for the requisite 10-year period, she does not meet the adverse requirement necessary to obtain a prescriptive easement.
A retiree purchased a rustic cabin on a small plot of land near the center of a landowner’s large parcel of land. The deed to the land, which the landowner delivered to the retiree for fair consideration, did not specifically grant an easement over the landowner’s property to reach the public highway bordering her land. There were two means of access to the cabin from the public roads: a driveway from the county road on the south, and a private road from the highway on the east. The landowner told the retiree that he could use the private road from the highway. Twice during his first two years at the cabin, the retiree took the driveway from the county road instead; at all other times he used the private road.
At the end of his second year at the cabin, the retiree began reading tarot cards to supplement his retirement income. He had a steady stream of clients coming to his home at all hours of the day and night. Most of the clients came in on the driveway from the county road, which ran close to the landowner’s home. The landowner objected, and told the retiree that neither he nor his clients had any right to use that driveway and that they must use the private road from the highway. The retiree refused, and he and his clients continued to use the driveway from the county road for three years. Finally, the landowner began blocking off the driveway from the county road. The retiree brought suit to enjoin this practice. The prescriptive period in this jurisdiction is five years.
Who will most likely prevail?
A The landowner, because the tarot business has changed the nature of the use of the easement by necessity.
B The landowner, because she may select the location of the easement.
C The retiree, because he has a valid easement by necessity in the driveway from the county road.
D The retiree, because he has acquired an easement by prescription in the driveway from the county road.
B
The landowner will prevail in a suit because she, as the holder of the servient estate, has the right to choose the location of an easement by necessity. An easement by necessity arises when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient. The landowner has chosen the private road from the highway; thus, the retiree has no right to use the driveway from the county road. Both (A) and (C) are incorrect because the retiree has no easement by necessity in the driveway. As stated above, the owner of the servient parcel (the landowner) has located the easement in the private road; thus, no easement in the driveway exists. When the owner of an easement uses it in a way that exceeds its legal scope (i.e., the easement is surcharged), the servient landowner may enjoin the excess use and possibly collect damages. If the easement by necessity had been located in the driveway, the excess use from the tarot business could have been the basis for the court’s ruling in the landowner’s favor. However, as stated above, the easement is in the private road from the highway. (D) is incorrect because the retiree’s use has not been continuous for the five-year period. To acquire an easement by prescription, the use must be: (i) open and notorious, (ii) adverse, and (iii) continuous and uninterrupted for the statutory period. Continuous adverse use does not mean constant use. Periodic acts that put the owner on notice of the claimed easement fulfill the requirement. In this case, however, two uses in the first two years would not be sufficient to put the landowner on notice that the retiree intended to claim an easement in the driveway. Therefore, the retiree has not acquired a prescriptive easement in the driveway from the county road.
A landowner owned a large tract of land, which he divided into two parcels. The northern parcel abutted a public highway. The shortest route from the southern parcel to the highway was over a private road that crossed the northern parcel. The other route was over a single-lane dirt and gravel path that wound for over four miles through the woods. The landowner sold the southern parcel to a developer, including an express easement in the private road across the northern parcel. The landowner knew of the developer’s plans to open an inn on the property. The developer built the inn but never opened it to the public.
Fifteen years later, the developer sold the southern parcel to an investor, who planned to open the inn to the public. The developer had never properly recorded her deed to the land, but the investor promptly recorded her deed, which made no mention of a right to cross the northern parcel via the private road. About a week after the investor took possession of the southern parcel, she learned of the provision in the developer’s deed to the land. However, the landowner refuses to grant the investor permission to use the road across his property to reach the highway.
Does the investor have a right to cross the northern parcel?
A No, because the easement is not mentioned in the investor’s deed, and the developer’s deed containing the easement was not recorded.
B No, because the investor’s opening of the inn would increase the use of the easement.
C Yes, but only if the developer exercised her right to use the easement when she owned the southern parcel.
D Yes, even if the developer never exercised her right to use the easement when she owned the southern parcel.
D
The investor has an easement to cross the northern parcel even if the developer never exercised her right to use the easement. The original easement granted to the developer was an easement appurtenant, the benefit of which passes with a transfer of the benefited land. An easement is deemed appurtenant when the right of special use benefits the easement holder in her physical use or enjoyment of another tract of land. The land subject to the easement is the servient tenement, while the land having the benefit of the easement is the dominant tenement. The benefit of an easement appurtenant passes with transfers of the benefited land, regardless of whether the easement is mentioned in the conveyance. All who possess or subsequently succeed to title to the dominant tenement are entitled to the benefit of the easement. The easement granted to the developer was an easement appurtenant because the right to use the private road across the northern parcel (the servient tenement) benefited the developer in her use and enjoyment of the southern parcel (the dominant tenement) by providing her with the most convenient access to the public highway. Thus, when the developer sold the benefited land to the investor, the benefit of the easement also passed to the investor as an incident of possession of the southern parcel. (A) is incorrect because, as explained above, this benefit passed to the investor despite the fact that the deed to the investor made no mention of the easement. The failure to record does not affect the validity of the easement. Recordation is not essential to the validity of a deed, but only serves to protect the interests of a grantee against subsequent purchasers. Here, the dispute is between the original grantor and the successor of the original easement holder. The purpose of most recording statutes is to provide notice to a burdened party. The person who granted the easement is in no need of notice. The only relevance of recording in this situation is with respect to the servient tenement, the northern parcel. The grant of easement should be recorded on the northern parcel, or bona fide purchasers from the landowner will take free of it. However, no such purchasers are involved in this question. (B) is incorrect because the investor’s use of the easement would not be a change in its use. This choice goes to the scope of the easement. The key for determining the scope is the reasonable intent of the original parties, including the reasonable present and future needs of the dominant tenement. Here, because the landowner knew of the developer’s plans to open an inn, he knew that she and her guests would use the road across the northern parcel. The investor’s use of the easement would be the same—her use and that of her guests. This is not a change in intended use sufficient to allow the landowner to legally prevent the investor’s use of the easement. (C) is incorrect because nonuse does not extinguish an easement. Abandonment, which does terminate an easement, requires a physical act by the easement holder that manifests an intent to permanently abandon the easement (e.g., erecting a building that blocks access to an easement of way). Because there is no indication of such an act by the developer, the easement continues to benefit the southern parcel even if the developer never used it.
