Real Property Concepts and missed Real property questions

Question 1

What does devisable mean?

Answer 1

If an estate is devisable, this means it can pass by will.

Question 2

What does descendible mean?

Answer 2

Descendible means the estate can pass by the statutes of intestacy if its holder dies intestate.

Question 3

What does alienable mean?

Answer 3

Alienable means that an estate is transferable inter vivos, AKA transferable during the holder’s lifetime.

Question 4

What is the duration of a fee simple absolute?

Answer 4

A fee simple absolute is ABSOLUTE ownership, of potentially infinite duration.

Question 5

In what ways is a fee simple absolute transferable?

Answer 5

It is devisable, descendible, and alienable.

Question 6

Is there any future interest in a fee simple absolute?

Answer 6

No, there is no future interest in a fee simple absolute.

Question 7

What is an example of language that creates a fee simple absolute?

Answer 7

“To A and his heirs” or “To A”

Question 8

Is a fee simple determinable (which is a defeasible fee) transferable? In what ways?

Answer 8

A fee simple determinable is alienable, devisable, and descendible, SUBJECT to condition.

Question 9

Is there any future interest held in a fee simple determinable?

Answer 9

Yes, the grantor holds a possible future interest due to the possibility of reverter.

Question 10

What is the duration of a fee simple determinable?

Answer 10

The duration of a simple simple determinable is potentially infinite, so long as the event does not occur.

Question 11

What are some examples of fee simple determinable language?

Answer 11

“To A so long as” or “To A until” or “To A while” AKA language providing that upon the happening of a stated event, the land is to revert to the grantor.

Question 12

What is the duration of a fee simple subject to condition subsequent?

Answer 12

POTENTIALLY infinite, so long as the condition is not breached, and, thereafter, until the holder of the right of entry timely exercises the power of termination.

Question 13

What is the transferibility of a fee simple subject to condition subsequent?

Answer 13

Sam as the fee simple determinable - alienable, devisable, descendible subject to condition.

Question 14

Is there a future interest in a fee simple subject to condition subsequent?

Answer 14

Yes - right of entry/power of termination which is held by the grantor.

Question 15

What type of language indicates a fee simple subject to condition subsequent?

Answer 15

“To A, but if X event happens, grantor reserves the right to reenter and retake.” NOTE with a fee simple subject to condition subsequent, the grantor must carve out right of reentry.

Question 16

What is the duration of a fee simple subject to executory limitation?

Answer 16

Potentially infinite, so long as stated contingency does not occur.

Question 17

What is the transferability of the fee simple subject to executory limitation?

Answer 17

The same as fee simple determinable and fee simple subject to condition subsequent - Alienable, deisable, and descendible subject to condition.

Question 18

Is there a future interest in a fee simple subject to executory limitation?

Answer 18

There is an executory interest held by a third party.

Question 19

What is example of language that illustrates a fee simple subject to executory limitation?

Answer 19

“To A, but if X event occurs, then to B.”

Question 20

What is the transferability of a life estate?

Answer 20

alienable, devisable, and descendable if pure autre vie and measuring life is still alive.

Question 21

Is there a future interest in a life estate?

Answer 21

Reversion (if held by grantor) OR remainder (if held by third party).

Question 22

What is the duration of a life estate?

Answer 22

The duration of a life estate is measured by the life of transferree or by some other life (pur autre vie).

Question 23

What are a few of examples of language that illustrate a life estate?

Answer 23

“To A for life” or “To A for the life of B”

Question 24

What are the three types of defeasible fees?

Answer 24

1. fee simple determinable
2. fee simple subject to condition subsequent
3. fee simple subject to executory limitation

Question 25

What does defeasible mean?

Answer 25

Defeasible means to be capable of forfeiture. So think of the three types of defeasible fees as fee simple (“To A”) with a catch or condition attached that renders the estate subject to the risk of forfeiture.

Question 26

If the stated condition in a fee simple determinable “To A so long as”, etc. is violated, what happens?

Answer 26

If the stated condition is violated, A suffers defeasance, forfeiture of the estate.

Question 27

How should you think of a fee simple determinable?

Answer 27

A fee simple determinable is a fee simple WITH A CATCH.

Question 28

ONLY ONE FUTURE INTEREST accompanies the fee simple determinable. What is it called?

Answer 28

The only future interest that accompanies the fee simple determinable is - The possibility of reverter! The possiblity of reverter back to the grantor IF the condition is violated. So “A” has a fee simple determinable and the grantor has the possibility of reverter. Those are the interests each individual has.

Question 29

What two ingredients are needed with the fee simple subject to condition subsequent?

Answer 29

#1 - you need clear durational language and 
#2 - you need a clear statement of the right of re-entry. 

So you get something like this: “To A, but if X event occurs (#1), grantor reserves the right to re-enter and retake (#2).

A good real life example - “To Selena, but if Selena every serves alcohol on site (#1), then Britney reserves the right to re-enter and retake (#2).

So here, Selena has a Fee simple subject to a condition subsequent and Britney has the right of reentry, synonymous with the power of termination. Britney could terminate, or not, it is up to her.

Question 30

What are some distinguishing characteristics between the fee simple determinable and the fee simple subject to condition subsequent?

Answer 30

With a fee simple subject to condition subsequent, the estate is not automatically terminated, unlike with the fee simple determinable, where it is automatically terminated. The grantor has the prerogative to terminate it or not with a fee simple subject to condition subsequent.

Question 31

How is the fee simple subject to executory limitation (the last of the three defeasible fees) created?

Answer 31

“To A, but if X event occurs, then to B.” So B takes if A forfeits.

Question 32

Hypo - “To Perry so long as he remains a lawyer, and if he leaves the legal profession, then to Tina.”

What does Perry have?
What does Tina have?

Answer 32

Perry has a fee simple subject to Tina’s shifting executory interest.

Tina has a shifting executory interest.

Question 33

Distinguishing characteristics of this type of defeasible fee?

Answer 33

The estate is just like the fee simple determinable, only now, if the condition is broken, the estate is automatically forfeited in favor of someone other than the grantor.

Question 34

What is the future interest that accompanies the fee simple subject to executory limitation called?

Answer 34

the shifting executory interest.

Question 35

TWO IMPORTANT RULES OF CONSTRUCTION FOR DEFEASIBLE FEES - what is the first one?

Answer 35

Words of mere desire, hope, or intention are insufficient to create a defeasible fee. COURTS WILL NOT FIND A defeasible fee unless CLEAR DURATIONAL language is used. Why? Because courts despise restrictions on free land use. They prefer land not to be tied up with retraints so courts won’t construe in favor of defeasible fees unless clear language exists like the examples we went over.

Question 36

What are examples of language that are NOT durational and thus do not create a defeasible fee, but just create a fee simple absolute?

Answer 36

“To A, for the purpose of constructing a day care center.”
or
“To A with the hope that he becomes a lawyer”
or
“To A with the expectation that the premises will be used as a hardware store.”

Question 37

TWO IMPORTANT RULES OF CONSTRUCTION FOR DEFEASIBLE FEES - what is the second one?

Answer 37

SECOND IMPORTANT rule for defeasible fees - absolute restraints on alienation are void.

Question 38

What is an absolute restraint on alienation?

Answer 38

An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to any reasonable time limited purpose.

Example - O conveys: “To A so long as she never attempts to sell.”

What is the problem with the grant? It contains an absolute restraint on alienation and absolute restraints on alienation are void. So this looks like a fee simple determinable BUT IT IS NOT because condition is void.
THUS, what A has is a fee simple absolute.

And what O has is nothing.

Question 39

NOTE THE phrase “that is NOT linked to any reasonable time limited purpose” in the absolute restraint on alienation language is important! If something is linked by any reasonable time limited purpose, that is not an absolute ban on the power to sell or transfer and that clause will thus be valid.

Hypo - O conveys” “To A so long as she does not attempt to sell until the year 2022, when clouds on the title will be resolved.”

Is this language okay? Why or why not?

So in this hypo, what does A have?

And what does O have?

Answer 39

This language is okay because here the restraint is linked to a reasonable, time limited purpose. Restraints that are linked to a reasonable, time limited purpose are okay.

Here, A has a fee simple determinable.

O has a possibility of reverter.

Question 40

THE LIFE ESTATE - this is NOT a defeasible fee.

How is a life estate created?

Answer 40

A life estate is an estate that must be measured in explicit lifetime terms, and NEVER in terms of years. For example, O conveys “To A for life.”

Question 41

Life Estate -

O conveys: “To A for life.”

What does A have?

What is A known as?

What does O have?

Answer 41

A has a life estate.

A is known as a life tenant.

O has a reversion - at the end of A’s lifetime, the estate goes back to O or O’s heirs.

Question 42

What is a life estate pur autre vie?

Answer 42

A life estate pur autre vie is a life estate measured by a life other than the grantee’s. For example, “To A for the life of B.”

Question 43

Life estate pur autre vie:

O conveys: “To Madonna, for the life of David Letterman.”

What does Madonna have?

What does O have?

When does the estate revert back to O or O’s heirs?

Answer 43

Madonna has a life estate pur autre vie.

O has reversion.

The estate reverts back to O or O’s heirs when David Letterman dies.

Question 44

For a life estate, what is the accompanying future interest called?

Answer 44

If it is held by O, it is called a reversion.

If it is held by a third party, it is called a remainder.

Question 45

What are some distinguishing characteristics of the life estate?

Answer 45

The life tenants entitlements are rooted in the important doctrine of waste. Note two general rules:

The life tenant is entitled to all ordinary uses and profits from the land.

AND

The life tenant must not commit waste.

Question 46

What are the three types of waste?

Answer 46

Voluntary, permissive, and ameliorative.

Question 47

What is voluntary waste?

Answer 47

Voluntary waste (also known as affirmative waste) is actual, overt conduct that causes a drop in value. You are liable for voluntary waste damages.

Question 48

What is permissive waste (neglect)?

Answer 48

Permissible waste occurs when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land. That is why permissive waste is synonymous with neglect. You can be liable for pattern of neglect that results in damages.

Question 49

Regarding permissive waste - what are the life tenants duties?

Answer 49

The life tenant msut simply MAINTAIN the premises in reasonably good repair.

IN ADDITIOn - the life tenant must pay all ordinary taxes on the land, to the extent of any income or profits that the life tenant is living on the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes only to the extent of the premises’ fair rental value.

Question 50

What is ameliorative waste?

Answer 50

The life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent. Why?

Because property law honors the future interest holders’ reasonable expectations and sentimental value.

Question 51

Moving on to future interests. How many categories of future interests are there? How are they categorized?

Answer 51

There are six categories of future interests. We classify them based on whether they are retained by the grantor, or instead, by a transferree.

Question 52

What are the three future interests capable of creation in the grantor?

Answer 52

1. The possiblity of reverter
2. The right of entry (also known as the power or termination)
3. The Reversion

Question 53

One future interest capable of creation by the grantor is the possibility of reverter. Which present estate does the possibility of reverter accompany?

Answer 53

The possibility of reverter accompanies the fee simple determinable.

Question 54

A second future interest capable of creation by the grantor is the right of reentry (also known as power of termination). What present estate does the right of entry accompany?

Answer 54

It accompanies the fee simple subject to condition subsequent.

Question 55

The third and last interest capable of creation by the grantor is the reversion. What is a reversion?

Answer 55

A reversion is the future interest that arises in a grantor who transfers an estate of lesser duration than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent.

Question 56

Example of reversion!

Answer 56

1. O, the holder of a fee simple absolute (which can endure forever, conveys “To A for life.” O has conveyed less than what she started with. O has a reversion.
2. O, the holder of a fee simple absolute, conveys “To A for life.” O has still conveyed less than what she started with. O has a reversion.
3. O, the holder of a fee simple absolute, conveys “To A for life, then to B for 99 years.” O has still conveyed less than what she started with. O has a reversion.

Question 57

If our future interest is held by someone other than the grantor, it is one of three things. What are they?

Answer 57

1. A contingent remainder or
2. A bested remainder or
3. An executory interest

Question 58

What are the three types of vested remainders?

Answer 58

1. the indefeasibly vested remainder.
2. the vested remainder subject to complete defeasance.
3. the vested remainder subject to open.

Question 59

What are the two types of executory interests?

Answer 59

1. the shifting executory interest and

2. the springing executory interest.

Question 60

What is a remainder?

Answer 60

A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior posessory estate created in the same conveyance in which the remainder is created.

Question 61

Remainders are either vested or contingent. What is a contingent remainder?

Answer 61

A remainder is contingent if
1. It is created in an unascertained or unknown person or
2. it is subject to an unmet condition precedent,
or both

Question 62

Examples of the remainder that is contingent because it is created in an unascertained or unknown person.

Answer 62

“To A for life, then to B’s first child.” A is alive. B, as of yet, has no children.

“To A for life, then to B’s heirs.” A is alive. B is alive. Because a living person has no heirs, while B is alive, his heirs are unknown.

“To A for life, then to those children of B who survive A.” A is alive. We don’t yet know which, if any, of B’s children will survive A.

Question 63

The remainder that is contingent because it is subject to an as yet unmet condition precedent. A condition is a condition precedent when it appears BEFORE the language creating the remainder or is woven intot he grant to the remainderman.

HYPO -
“To A for life, then, if B graduates from college, to B.” A is alive. B is now in high school. before B can take, he must graduate from college. He has not yet satisfied this condition precedent.

What does B have?
What does O have?
What is B graduates from college during A’s lifetime?

Answer 63

B has a contingent remainder.

O has a reversion - if B never graduates then O or O’s heirs will take.

If B graduates during A’s lifetime, the remainder is no longer contingent on B’s graduation so now this is an indefeasibly vested remainder.

Question 64

When is a remainder a vested remainder?

Answer 64

A remainder is vested when it is created in a known taker who is not subject to a condition precedent.

Question 65

What are the three types of vested remainders?

Answer 65

1. indefeasibly vested remainder.
2. vested remainder subject to complete defeasance
3. vested remainder subject to open.

Question 66

How to distinguish the three types of vested remainders - first, what is the indefeasibly vested remainder?

Answer 66

The indefeasibly vested remainder - the holder of this remainder is certain to acquire an estate in the future, with no strings or conditions attached.

Hypo - “To A for life, remainder to B.” A is alive. B is alive.

What does A have? An indefeasibly vested remainder.

Why? B exists with no strings attached on his interest.

What if B predeceases A? Common law result - B future interest passes by will or intestacy.

Question 67

The vested remainder subject to complete defeasance - what is it?

Answer 67

Here, the remainderman exists. His taking is NOT subject to any condition precedent. However, his right of possession could be cut short because of a condition subsequent.

Here, it is important to know the difference between a condition precedent, which creates a contingent remainder, and a condition subsequent, which creates a vested remainder subject to complete defeasance. To tellt he difference, apply the comma rule. When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you ahve a vested remainder subject to complete defeasance.

Question 68

If there is a covenant against assignment does that mean that the tenant also cannot sublease her interest?

Answer 68

A covenant against assignment does NOT prevent the tenant from subleasing her interest. Covenants against assignment or sublease are strictly construed against the landlord. Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa.

Question 69

If a tenant transfers her interest in violation of a covenant against assignment or sublease, is the transfer void?

Answer 69

If a tenant transfers her interest in violation of a covenant against assignment or sublease, the transfer is NOT void. However, the landlord usually may terminate the lease under the lease terms or a statute or sue for damages.

Question 70

If a lease has a no assignment no sublease covenant and the tenant does it anyway and the landlord consents to it, what happens with any future assignments or sublets?

Answer 70

If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers.

Question 71

Which of the following transfers creates an assignment of the lease from T to T2?

A) Four years into a six year tenancy for years, T orally transfers his entire interest to T2 for two years.
B) Two years into a four year tenancy for years, T “assigns my entire interest to T2 for one year.”
C) One year into a five year tenancy for years, T transfers his interest “to T2 for four years, however if T2 breaches the original lease terms, T may reenter and retake the premises.”
D) Six months into a tenancy at will, T transfers “my entire interest to T2.”

Answer 71

C is correct.

If one year into a five-year tenancy for years, T transfers his interest “to T2 for four years; however, if T2 breaches the original lease terms, T may reenter and retake the premises,” the effect of the transfer is an assignment of the lease from T to T2. A complete transfer of the entire remaining lease term constitutes an assignment of the lease. If the tenant retains any part of the remaining lease term, other than a right of reentry for breach of the original lease terms, the transfer is a sublease. Here, T transferred the remaining four years of the lease to T2. By the slight majority view, T’s reservation of a right of reentry does not result in a sublease, but rather is still an assignment

Question 72

If in an assignment for a lease, T assigns it but reserves a right of reentry, is that an assignment or a sublease?

Answer 72

By the slight majority view, a reservation of a right of reentry does not result in a sublease, but is still an assignment.

Question 73

Why was answer D wrong?

D) Six months into a tenancy at will, T transfers “my entire interest to T2.”

Answer 73

If six months into a tenancy at will, T transfers “my entire interest to T2,” the attempted assignment is void and terminates the tenancy at will by operation of law.

A tenancy at will is a leasehold estate that is terminable at the will of either the landlord or the tenant. Such a tenancy terminates by operation of law if:

1. Either party dies;
2. The tenant commits waste;
3. The tenant attempts to assign his tenancy;
4. The landlord transfers her interest in the property; or 5. The landlord executes a term lease to a third person.

Question 74

Why is answer B wrong?

B) Two years into a four year tenancy for years, T “assigns my entire interest to T2 for one year.”

Answer 74

If two years into a four-year tenancy for years, T “assigns my entire interest to T2 for one year,” the effect of the transfer is to create a sublease between T and T2. The label given to the transfer by the parties does not determine whether the transfer is an assignment or a sublease. The nature of the transaction is determined by what interest, if any, the tenant retains. Here, although T “assigned” his interest to T2, he transferred only one of the remaining two years of the lease. Thus, the transfer is a sublease rather than an assignment.

Question 75

Why is answer A wrong?

A) Four years into a six year tenancy for years, T orally transfers his entire interest to T2 for two years.

Answer 75

If four years into a six-year tenancy for years, T orally transfers his entire interest to T2 for two years, the attempted assignment is ineffective under the Statute of Frauds. Most states require that a lease creating a tenancy for more than one year, including an assignment of an interest in a lease for more than one year, be in writing to satisfy the Statute of Frauds.

Question 76

If a tenant transfers (assigns or sublets) in violation of a prohibition in the lease against transfers, is the transfer void? What happens? Does the landlord have to accept it?

Answer 76

Generally, if a tenant transfers (assigns or sublets) in violation of a prohibition in the lease against transfers, the transfer is not void. However, the landlord usually may terminate the lease under either the lease terms or a statute.

Question 77

A landlord entered into a 10-year lease of a building with an auctioneer, who planned to use the building itself for a storage area and the covered porch at the front of the building for auctions. A term in the auctioneer’s lease stated, “Lessor agrees to maintain all structures on the property in good repair.” Four years into the lease, the landlord sold the property to a buyer. The buyer did not agree to perform any obligations under the lease. As instructed, the auctioneer began paying rent to the buyer. In the fifth year of the lease, the porch roof began to leak. Citing the lease terms, the auctioneer asked the buyer to repair the roof. He continually refused to do so. The auctioneer finally repaired the roof herself at a cost of $2,000. The auctioneer then brought an appropriate lawsuit to recover the money.

Absent any other facts, what is the auctioneer likely to recover?

A) 2,000 from the landlord only, because the sale of the property did not sever his obligation to the auctioneer.
B) 2,000 from the buyer only, because a covenant to repair runs with the land.
C) 2,000 from either the buyer or the landlord, because they are both in privity with the auctioneer.

Answer 77

The correct answer is C.

The auctioneer may recover the cost of repair from either the landlord or the buyer. A landlord’s promise in a lease to maintain the property does not terminate because the property is sold. Although no longer in privity of estate, the original landlord and tenant remain in privity of contract, and the original landlord remains liable on the covenant unless there is a novation.

A novation substitutes a new party for an original party to the contract. It requires the assent of all parties and completely releases the original party. Because neither the auctioneer nor the buyer has agreed to a novation, the landlord remains liable for the covenant because he and the auctioneer remain in privity of contract even after the sale.

Thus, the promise to repair can be enforced against the landlord. When leased property is sold, the purchaser may be liable for his predecessor’s promises if the promise runs with the land. A covenant in a lease runs with the land if the parties to the lease so intend and the covenant touches and concerns the land. Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land.

Thus, the buyer is liable because he is in privity of estate with the auctioneer and the covenant to repair runs with the land. Consequently, both the landlord and the buyer are potentially liable to the auctioneer for the repairs. While it is true that the sale/assignment to the buyer did not sever the landlord’s obligation to the auctioneer, as explained above, the landlord is not the only person who is liable to the auctioneer.

Question 78

Does a covenant in a lease to repair run with the land?

Answer 78

Yes. Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land.

Question 79

If an easement is “surcharged” what does this mean?

Answer 79

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.

Question 80

What rights does the servient landowner have when an easement is surcharged?

Answer 80

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.

Question 81

Condemnation of a servient estate will terminate an easement. If this happens, what is the easement holder entitled to?

Answer 81

Condemnation of the servient estate will terminate an easement. The easement holder may be entitled to compensation for the value lost.

Question 82

Is nonuse of an easement alone enough to terminate the easement?

Answer 82

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.

Question 83

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 the power line ran across the land when she accepted the deed.
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 she did not mind having the powerline on the property.
D) The daughter was only doing this out of spite, not a good faith belief she has the right to remove the power line.

Answer 83

The correct answer is 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.

Question 84

Why is D wrong?

D) The daughter was only doing this out of spite, not a good faith belief she has the right to remove the power line.

Answer 84

(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.

Question 85

Why is A wrong?

A) The daughter knew the power line ran across the land when she accepted the deed.

Why is C wrong?

C) The daughter told the landowner she did not mind having the powerline on the property.

Answer 85

(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.

Question 86

What is an equitable servitude?

Answer 86

An equitable servitude is a covenant (i.e., a promise to do or not to do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of the covenant. The burden of an equitable servitude will run to successors in interest if:

1. The covenanting parties intended that successors in interest be bound by the covenant;
2. The successor in interest has notice of the covenant (if she has given value); and
3. The covenant touches and concerns the land (i.e., it benefits the covenantor and his successor in their use and enjoyment of the burdened land).

Horizontal privity between the original covenanting parties and vertical privity between the covenantor and his successor in interest are not required.

Question 87

May a grantee be bound by a covenant that does not appear in his deed or chain of title?

Answer 87

A grantee may be bound by a covenant that does not appear in his deed or chain of title if there is a common scheme for development and the grantee had notice of the covenant. An equitable servitude is a covenant (i.e., a promise to do or not to do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against successors to the burdened land who have notice of the covenant. Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, in the absence of a writing, negative equitable servitudes may be implied if (i) there is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant), and (ii) the grantee had actual, record, or inquiry notice of the covenant.

Except as explained above, a grantee may not be bound by a covenant that does not appear in his deed or chain of title even if the covenant touches and concerns the land. The burden of an equitable servitude will run to successors in interest if: (i) the covenanting parties intended that successors in interest be bound by the covenant; (ii) the successor in interest has notice of the covenant; and (iii) the covenant touches and concerns the land (i.e., it benefits the covenantor and her successor in their use and enjoyment of the burdened land). In the absence of a writing, however, the servitude will not be enforced unless there is a common scheme for development as explained above.

A grantee may be bound by a covenant that does not appear in his deed or chain of title even if the deed contains a covenant against encumbrances. This is a covenant contained in a general warranty deed assuring that there are neither visible encumbrances (e.g., easements) nor invisible encumbrances (e.g., mortgages) against the title or interest conveyed. The presence of this covenant does not affect the ability of a successor in interest to the covenantee to enforce an equitable servitude.

A grantee also may be bound by a covenant that does not appear in his deed or chain of title even if the deed is a quitclaim deed. This type of deed conveys whatever interest, if any, the grantor has in the property. It does not affect the ability of a successor in interest to the covenantee to enforce an equitable servitude.

Question 88

What does the hostile element of adverse possession mean?

Answer 88

The hostility element of adverse possession requires that the possessor lack the true owner’s permission to be on the land.

Question 89

What does the hostile element of adverse possession mean?

Answer 89

The hostility element of adverse possession requires that the possessor lack the true owner’s permission to be on the land. Also, it doesn’t matter if the possessor knows if he is trespassing or not.

To establish title by adverse possession, the possessor must show:

(i) An actual entry giving exclusive possession that is
(ii) Open and notorious,
(iii) Adverse (hostile), and
(iv) Continuous throughout the statutory period.

Question 90

For purposes of determining title by adverse possession, when is tacking not available?

Answer 90

For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession. Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.