Real Property Flashcards
Easement extinguished by Merger
Sue purchased from Tom an easement for a right-of-way over Blackacre to be used in connection with her ownership of Whiteacre. This easement, an appurtenant easement of which Whiteacre was the dominant estate and Blackacre was the servient estate, was promptly and properly recorded. When the owner of the dominant estate (Sue) acquired the servient estate (Blackacre), however, the easement was extinguished by merge
Implied Easement
An easement implied from prior use arises in favor of a grantee when (1) two parcels of land are in common ownership; (2) one of the parcels is conveyed to a grantee; (3) the parcel conveyed had been receiving a benefit from the parcel retained prior to the conveyance to the grantee, i.e., there was a use over the retained parcel in favor of the conveyed parcel which could have been the subject of an express easement appurtenant; (4) the usage is reasonably necessary or convenient; and (5) the usage is apparent.
“The principle underlying the creation of an easement by implication is that it is so evidently necessary to the reasonable enjoyment of the granted premises, so continuous in its nature, so plain, visible and open, so manifest from the situation and relation of the two tracts that the law will give effect to the grant according to the presumed intent of the parties.”
Most courts interpret the “reasonably necessary” requirement “to mean that the easement must be important to the enjoyment of the” conveyed land or “highly convenient.” S INGER, supra, at 196.Courts are likely to find that an easement is implied from prior use where access to the transferred land is “extremely difficult by other routes” and to find that an easement is not implied when the transferred land has “easy access to public roads in another direction.” Most courts have found that the “apparent” requirement is met when the usage is visible.
Easement by necessity
NOTE: Dan did not acquire an easement by necessity over Blackacre, because Whiteacre is not landlocked, and he has access to it from the county road. An easement by necessity arises only when there has been a conveyance of a portion of the grantor’s land, the grantor retains the remaining portion, and, after severance of the grantor’s land, it is necessary for the grantee to pass over the grantor’s retained portion to reach a public street or highway. See generally STOEBUCK & WHITMAN, supra, § 8.5 at 447. Landlocked land clearly satisfies the necessity test, and a few courts have found an easement where there is merely “reasonable” necessity. Additionally, this is not a case for easement by estoppel. An easement by estoppel arises when A gives B permission to use A’s land and the licensee, here B, invests substantial funds in that land reasonably relying on the permission. The facts here do not support the conclusion that there is an easement by estoppel.
Future-Advances Mortgage
The typical construction loan provides that the lender will advance funds to the borrower over a fixed time period. The lender secures a mortgage on the property for the entire amount of the money it has agreed to lend, including future advances. Such “future advances” mortgages may provide for obligatory advances, or they may provide for advances that are optional.
Whether the future-advances mortgage payments are obligatory or optional is critical to the rights of a junior lender. If payments under a future-advances mortgage are obligatory, then the junior lender’s lien is junior both to amounts loaned to the debtor before the junior lien was recorded and to amounts loaned after the junior lien is recorded. If the payments under a future-advances mortgage are optional, the junior lender has a priority over amounts transferred to the debtor by the senior lender after the junior lender transfers funds to the debtor and records its mortgage. See generally GRANT S. N ELSON & D ALE A. W HITMAN , REAL ESTATE FINANCE LAW §12.7 at 1088–90 (5th ed. 2007). The rationale for this rule is that in the case of an obligatory loan, the junior lender can ascertain from public land records the maximum amount of the senior lender’s claim before loaning money to the creditor, while with an optional loan, the junior lender cannot know whether subsequent advances will be made and the senior lender can protect itself against junior lenders by searching the land records before making additional advances.
