Week 4 - Easements and Covenants 9/13/24

Question 1

Almost every easement is an _____ ________ because it lets you do something.

Answer 1

affirmative easement

Question 2

Parcel A has waterfront access and Parcel B does not. The owner of Parcel B may negotiate to create an _______ _______ whereby whoever owns parcel B has access to traverse the burdened estate to get to the water.

Answer 2

affirmative easement

Question 3

Most easements that we think of in common use - ________ or ________ across someone else’s land to get somewhere more easily.

Answer 3

driving or walking

Question 4

Most easements that we think of in common use - driving or walking across someone else’s land to get somewhere more easily. Those access easements are ________ ________.

Answer 4

affirmative easement

Question 5

Most easements that we think of in common use - driving or walking across someone else’s land to get somewhere more easily. Those access easements are affirmative easement. Written in the way I just described where whoever owns parcel b has the ability to cross parcel A irrespective of whomever owns it, then it is ________ __________ easement, that is ________ created.

Answer 5

appurtenant
affirmative

expressly

Question 6

2 examples of a _______ _________: where you have the ability to keep neighbor from building a two story structure anywhere on their property _________ _________ because you are stopping somebody from doing something.

________ ________ because you can stop people from developing and make sure the land stays green space.

Answer 6

negative easement
negative easement

conservation easement

Question 7

Most things are _______. Best if the parties stipulate to the precise location of the easement.

Answer 7

affirmative

Question 8

Example: A’s bedroom window is here, and A doesn’t want to have to keep blinds closed, so they want to _________ where the _________ is. A could leave the blinds open and not have B staring in the bedroom window. For improvement purposes if A wants to plant a flower garden or install a feature in their backyard or build a patio, they all need to happen in places where the easement is not. Don’t want bob swimming in the pool to get to the lake.

Answer 8

stipulate

easement

Question 9

How you could draft a document: church parking lot case

Answer 9

FSA OR Church could convey to Peterson and reserve an easement in favor of itself for the congregation to park there.

Question 10

When you own a parcel of land you typically don’t have an easement over your own property, you don’t even need an easement because it is yours.
What does this refer to?

Answer 10

Doctrine of merger

Question 11

Doctrine of merger when you own a parcel of land you typically don’t have an ________ over your _____ ______, you don’t need an easement because it is yours.

Answer 11

easement

own property

Question 12

In our negative easement picture from Tuesday, when O divided the water front property and sold the waterfront half to A, O had to then create a new interest that didn’t exist before which was an easement to cross parcel B to get to the newly created parcel A and then to the water. That is what they were trying to say. If later O were to reacquire parcel A, the _________ would go away because the ________ and _________ estates would merge.

Answer 12

easement

dominant

servient

Question 13

Doctrine of merger you don’t have an easement over your own stuff. You don’t need permission to walk across your own land. O didn’t need permission, then when O sold half of it he did. !!

Answer 13

!!

Question 14

Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1. ?
2.
3.
4.

Answer 14

1. Fee Simple (perpetual duration)

Question 15

Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1.
2. ?
3.
4.

Answer 15

2. For the life of a party

Question 16

Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1.
2.
3. ?
4.

Answer 16

3. For a fixed duration

Question 17

Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1.
2.
3.
4. ?

Answer 17

4. For the duration of a specified event, e.g., for the duration of a lease

Question 18

They can be perpetual in duration– the idea when we are creating easements we want to permanently ________ and ______ the land.

Answer 18

benefit and burden

Question 19

When bob is negotiating for waterfront access easement, he wants it to last in _________ because even after he dies, he wants it to be increased in value because of waterfront access and doesn’t want it to go away if A dies or sells to some other person.
Easements are in FSA – created to __________ exist.

Answer 19

perpetuity

perpetually

Question 20

Sometimes limited to the life of a person. You like bob and as long as he is alive, he gets to walk across parcel A.

Answer 20

Duration of Easement for the Life of a Party

Question 21

Amount of compensation that Alice, owner of Parcel A wants depends on the duration of the easement. If Alice’s property is going to be burdened in _________, she may expect a significantly higher return on that easement, then if it is just for the summer or just for bob’s lifetime.

Answer 21

perpetuity

Question 22

Might be that bob has rented out his house to his nephew for the summer and we want the nephew to have access to the waterfront for the three months of summer. Specific to the time frame of the lease.

Answer 22

For the duration of a specified event

Question 23

Important for you to pay attention to details. Drafted practice essay and there is a diagram that goes with it.

Answer 23

Duration of Easements

Question 24

A ________ is an oral or written permission given by an occupant of land allowing the licensee to do some act that would otherwise be a trespass.

Answer 24

license

Question 25

A license is an ______ or _______ permission given by an occupant of land allowing the licensee to do some act that would otherwise be a trespass.

Answer 25

oral or written

Question 26

A license is an oral or written permission given by an occupant of land allowing the licensee to do some act that would otherwise be a ______.

Answer 26

trespass

Question 27

A license is an oral or written permission given by an _______ of ______ allowing the licensee to do some act that would otherwise be a trespass.

Answer 27

occupant of land

Question 28

Also, a type of servitude. A _______ is often less formal than an easement. You don’t have to always have a writing.

Answer 28

license

Question 29

Also, a type of servitude. A license is often less formal than an easement. You don’t have to always have a writing.
I like for everything to be in writing all the time because then we don’t have to argue what access rights are present, but licenses historically have been oral or written and allow someone to come onto someone’s land that would otherwise be a trespass. Special permission to come on my land when I could have pursed an action in trespass against you. True or False

Answer 29

True

Question 30

Most ________ are revocable without the permission of the licensee.

Answer 30

licenses

Question 31

Most licenses are revocable without the permission of the ______.

Answer 31

licensee

Question 32

Example: neighbor named mason. Obsessed with Halloween. Into monsters. He was speech delayed but now his favorite words is decorated. Mason always has free _______ to come onto my property. When he got the sharpie marker and made mike Winooski on my driveway, I revoked his _______ that day. He was no longer welcome because it is a big house, and my kid is going to go to college, and I don’t need that big of a house and I will need to sell it. I was very giving of my license but not when he created artwork on my driveway.

Answer 32

license

license

Question 33

All licenses are revocable.
A. True
B. False

Answer 33

B. False

That is false. There are some that are irrevocable. 2 situations where licenses become irrevocable

Question 34

______ ____ _____ ______ – once upon a time I bought a house and they wouldn’t come down on the price, so I negotiated with them and got the sofa, and the lawn mower, turned out that my husband didn’t want the john deer he wanted the club cadet. To pay for the expensive cub cadet I had to sell the john deer that come with the house. I had a circular drive and pretended that it has a gate on each side, you can’t come on my land to inspect but I have parked it close to the road and put for sale with the phone number if interested just call. Pretend that Jackson calls because he is thinking about a vintage john deer and I open the gate and hand him the key and he test drives and says he would like to buy it, pretend he paid me 1000 dollars. You pay me and say I have to go home and put the trailer on my pick up and I say no problem re-lock the gate, Jackson comes back and he sees that the gate is locked and says he is here to pick up the lawn mower and I say your license is revoked, I can’t do that because his license is ______ _____ _______ ______so I have to let him back on the land to get the lawn mower.

Answer 34

coupled with an interest

coupled with ownership interest

Question 35

Estoppel has how many elements?

Answer 35

3

Question 36

Three Estoppel Elements:
1. ?
2.
3.

Answer 36

1. Representation - can be active or inactive

Question 37

Three Estoppel Elements:
1.
2. ?
3.

Answer 37

2. Detrimental reliance upon the representation (or change in position on the part of the licensee)

Question 38

Three Estoppel Elements:
1.
2.
3. ?

Answer 38

3. Conclusion that it would be inequitable or unfair if the representation was not enforced.

Question 39

Three Estoppel Elements:
1.
2.
3.

Answer 39

1. Representation can be active or inactive
2. Detrimental reliance upon the representation (or change in position on the part of the licensee)
3. Conclusion that it would be inequitable or unfair if the representation was not enforced.

Question 40

___________ made by the owner of the burdened property and that representation can be active or inactive.

Answer 40

Representation

Question 41

Holbrook v. Taylor for example for estoppel elements. H needed to use the road to get to his property. If as Taylor goes by and waves and they exchange a wave I would call that an _________ __________. I see you I know you are using my road, and I am not stopping you from using my road.

Answer 41

inactive representation

Question 42

______ __________ hi my name is Taylor I would like to use your road do I have permission to use your road and Holbrook says yes. Either way representation existed because H knew T was using the road and didn’t stop Taylor, till he did.

Answer 42

active representation

Question 43

H v. T and T said I bought some land behind you, and I am going to build a house on it and H said great welcome to the neighborhood. T spends all this money to build a house and __________ ______ on H’s representation that it is okay to use the road. Why would you spend 25K to build a house and not have access to it. T expends all of his sources towards building a house and Taylor ________ ________.

Answer 43

detrimentally relies

detrimentally relies

Question 44

Now that T has gone to all this trouble and spent all this money it would be ______ to not let him use the road anymore.

Answer 44

unfair

Question 45

It is similar to an easement, but a _______ is, with two notable exceptions, ________.

Answer 45

license

revocable

Question 46

A license may be found to be irrevocable based upon one of the following:
1. ?
2.

Answer 46

1.License coupled with an interest, i.e., a license that is identical to ownership rights to personal property located on the licensor’s land.

Question 47

A license may be found to be irrevocable based upon one of the following:
1.
2. ?

Answer 47

2. Estoppel.

Question 48

A license may be found to be irrevocable based upon one of the following:
1.
2.

Answer 48

1. License coupled with an interest, i.e., a license that is identical to ownership rights to personal property located on the licensor’s land.
2. Estoppel.

Question 49

A license that is identical to ownership rights to personal property located on the licensor’s land.

Answer 49

license coupled with interest

Question 50

Holbrook v. Taylor: The license to use the road case
*The use of the road to take in heavy equipment and supplies for the construction of improvements,
*The maintenance of the roadway,
*The erection of a $25K house,
*All occurring with Holbrook’s consent (tacit at least),
*Means that the license to use the roadway may not be ________.

Answer 50

revoked

Question 51

Difference between AP and prescription is stealing the right to ______ and not ________the right to own the driveway.

Answer 51

USE

Possession

Question 52

Difference in adverse possession and prescription is the time it takes and the __________ requirement.

Answer 52

exclusivity

Question 53

In most instances with prescription talking about walking or using driveways or roads and exclusivity is not a requirement for ____________ In a majority of jurisdictions.

Answer 53

prescriptions

Question 54

License write it down all the time because silly things can happen, and you want to know what access rights you have. My ex-husband hunted and for him it was all about finding a good hunting spot and getting access to it. You’d have to get permission to get to the land you hunted on, and you may want to negotiate for exclusive access to some extent. Only so many critters and the more people out in the woods the less chance you have of killing an animal. May want in writing permission to be there in case they are in the hospital and their son comes out with a gun you want to be able to show them the paper. Saves a lot of problems.
To the extent that you feel like you have an interest on the land (remove a natural resource or lawn mower) might be good to have it in writing.
Estoppel or license is coupled with an interest.
To avoid non-sense is to write it down. Better to be able to prove when some of the people are armed. No majority or minority.
!!

Answer 54

!!

Question 55

EXPRESS EASEMENTS
EXPRESS CREATION:
1. ?
2.
3.
4.

Answer 55

1. Comply with statute of frauds

Question 56

EXPRESS EASEMENTS
EXPRESS CREATION:
1.
2. ?
3.
4.

Answer 56

2. Describe rights and obligations

Question 57

EXPRESS EASEMENTS
EXPRESS CREATION:
1.
2.
3. ?
4.

Answer 57

3. Specify intent to run with the land, and

Question 58

EXPRESS EASEMENTS
EXPRESS CREATION:
1.
2.
3.
4. ?

Answer 58

4. Recordation

Question 59

I expect you to be able to classify easement. 3 ways: affirmative v. negative, appurtenant v. in gross appurtenant easements we end up with 2 pieces of land a benefited and burdened parcel. Easement in gross we end up with a burdened parcel and benefited person or entity. First two ways to classify.

Third way to classify is how it was created. Written assessment coming up soon and midterm. If there is an easement in the fact pattern classify it. I have points in there for that. Classify based on all three categories.
!!!!

Answer 59

!!!

Question 60

________ created easement are written down easement. That is what we mean by they comply _______ ____ _______.

Answer 60

Expressly

Statute of Frauds

Question 61

They are going to ______ ____ ___ _____ __________ – easement to use someone else’s driveway to get to your property, driveways get potholes and need to be paved or graveled. Sometimes whether is bad and it might snow. Stipulate who has to shovel the snow are we paying in even years. Do I pay in even and you pay in odd? Or do we just split it 50/50.

Things we want to negotiate in advance, so we don’t have to fight about it later. Rain and dirt and gravel gets flooded, and we have to put down more gravel or professionally grated, who is going to pay for that?

Answer 61

describe the rights and obligations

Question 62

Does this ____ ____ ____ ____ is this driveway easement a benefit to parcel B and burden to A or benefit to bob and burden to Alice. Easy to get distracted by people who are owning and occupying today, but we have to be forward thinking, we want it to benefit parcel B so B always has access. If we are Alice, we want more money. Depending on which side you represent you have to anticipate all of the normal maintenance and cost issues and divide those and when negotiating price how long is it going to last and is it a perpetual burden on the land.

Answer 62

run with the land

Question 63

Anticipate all the maintenance and cost issues. How long is it going to last and is it a perpetual burden on the land?
What does this refer to?

Answer 63

Express Easement Creation

Question 64

It is best t record it. If not recorded and not listed in the next person’s deed they might argue that they don’t have notice of it and they should not be encumbered by it and that could make your property a lot less valuable if there is no way to legally access it.

As long as you have written it down you have ______________ _______________.

Answer 64

expressly created

Question 65

The two implied easements are strict necessity and prescriptive easements.
A. True
B. False

Answer 65

B. False

Question 66

Prescriptive easements is not implied because you have to do ____________ acts to acquire a prescriptive easement.

Answer 66

affirmative

Question 67

When you go to buy a house what is something that you or your home inspector might do, flush the toilets.
Flush the toilets and it goes down. Turn on the facets. Shower water pressure.
All with the premise that the water is going down and somewhere. !

Answer 67

!

Question 68

IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1. ?
2.
3.
4.

Answer 68

1. One part of the land is serving another part and

Question 69

IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2. ?
3.
4.

Answer 69

2. Such service exists and is apparent when the common owner divides the property and

Question 70

IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2.
3. ?
4.

Answer 70

3. The parties reasonably expect the service to continue; and

Question 71

IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2.
3.
4. ?

Answer 71

4. The service is reasonably necessary (although perhaps not strictly necessary); then

An easement implied from a prior existing use.

Question 72

IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2.
3.
4.

Answer 72

1. One part of the land is serving another part; and
2. such service exists and is apparent when the common owner divides the property; and
3. The parties reasonably expect the service to continue; and
4. The service is reasonably necessary (although perhaps not strictly necessary); then
   An easement implied from a prior existing use is created.

Question 73

With regard to the standard of necessity needed for AEU easement most courts hold ________ necessity is how much necessity that you need.

Answer 73

reasonable

Question 74

If the _______ and ______ tenements become owned by the same person then the doctrine of merger comes in and the easement goes away.

Answer 74

dominant
servient

Question 75

If the dominant and servient tenements become owned by the same person then the _____ ____ _____ comes in and the easement goes away.

Answer 75

doctrine of merger

Question 76

If the dominant and servient tenements become owned by the same person then the doctrine of merger comes in and the ________ goes away.

Answer 76

easement

Question 77

Dominant and servient is like saying ________ and ________ and they become owned by the same person then the easement goes away.

Answer 77

benefit

burdened

Question 78

Easement by ______ ______ -parcel that is land locked. You don’t have access to the main road so you get the right to drive across someone’s land because otherwise you can’t get out.

Answer 78

strict necessity

Question 79

Weird quirk.
Easement by strict necessity -parcel that is land locked. You don’t have access to the main road so you get the right to drive across someone’s land because otherwise you can’t get out.

County puts in a new road – your easement by strict necessity will _____ ______. Idea you could only drive across someone else’s land because there was no other way and now there is another way. Easement by strict necessity works.

Answer 79

go away

Question 80

Easements by _____ ______ _____ don’t work that way, even if the reasonable necessity goes away the easement is not extinguished.

Answer 80

apparent existing use

Question 81

IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1. ?
2.
3.

Answer 81

1. Common ownership of property that is divided

Question 82

IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1.
2. ?
3.

Answer 82

2. At the time of severance, use of that alleged burdened parcel is necessary in order to access or otherwise allow reasonable enjoyment of the alleged benefited parcel.

Question 83

IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1.
2.
3. ?

Answer 83

3. The necessity is substantial (varies from state-to-state.

Question 84

IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1.
2.
3.

Answer 84

1. Common ownership of property that is divided
2. At the time of severance, use of that alleged burdened parcel is necessary in order to access or otherwise allow reasonable enjoyment of the alleged benefited parcel.
3. The necessity is substantial (varies from state to state).

Question 85

One big parcel of land owned by one person who divided it up. At the time they divide it up the use of the alleged burdened parcel was necessary to access or allow reasonable enjoyment of the alleged benefited parcel.
At the time the true owner split everything up there was a problem that we would have to drive across the burdened parcel to get to the benefited parcel.

_________ is substantial. – described in a strict necessity easement will vary from state to state.

Answer 85

necessity

Question 86

Compare _________ necessity for Apparent Existing Use to __________ necessity here in the strict necessity realm.

Answer 86

Reasonable

substantial

Question 87

If you do it long enough and they don’t stop you that could ______ into a __________ ________.

Answer 87

ripen

prescriptive easement

Question 88

To establish an easement by _________one must establish the Hostile and adverse character of the user. Use by Express or implied permission or license cannot ripen into an easement by __________.

Answer 88

prescription

prescription

Question 89

In Texas in 1950 you had to prove exclusivity in order to achieve a prescriptive easement. O is driving down the same road R it is not exclusive use it is shared use. The court here in
O v. R accepts the MINORITY rule with regard to ___________ as an element for prescription.

Answer 89

exclusivity

Question 90

Majority rule- it is alright for the servient estate to utilize the driveway prescription is still possible. True of False.

Answer 90

True

Question 91

If you had represented O, can you think of any arguments that we have discussed today that might work better?

Answer 91

The idea that license are irrevocable when they are coupled with an interest or an estoppel situation might have been a better course of action.

Question 92

Strict Necessity Easement we have to have the necessity continue through the whole life of the easement if necessity goes away the easement goes away. True or False.

Answer 92

True

Question 93

For an easement based on ______ _______, the necessity must exist at the moment the two estates are severed and must continue throughout the claimed life of the easement.

Answer 93

strict necessity

Question 94

If the easement becomes unnecessary at some point because the claimant obtains some other access, the easement dissolves and is gone.

what does this refer to?

Answer 94

strict necessity

Question 95

If the other access is later lost, the easement does not reappear but must be reacquired by purchase.

What does this refer to?

Answer 95

strict necessity

Question 96

The doctrine of merger states that if benefited and burdened estates come under the ownership of a single person or entity, the easement is extinguished.
A. True
B. False

Answer 96

A. True

Question 97

PRIVATE PRESCRIPTIVE EASEMENTS
Comparable to Adverse Possession, but:
1. ?
2.

Answer 97

1. obtaining use rights, rather than possessory rights in property

Question 98

PRIVATE PRESCRIPTIVE EASEMENTS
Comparable to Adverse Possession, but:
1.
2.?

Answer 98

2. Exclusive element different

Question 99

To establish _______ _______, one must show that the use was: open and notorious, continuous, adverse and under claim of right for the statutory period.

Answer 99

prescriptive right

Question 100

To establish prescriptive right, one must show that the use was
1. ?
2.
3.

Answer 100

1. open and notorious

Question 101

To establish prescriptive right, one must show that the use was
1.
2. ?
3.

Answer 101

2. continuous

Question 102

To establish prescriptive right, one must show that the use was
1.
2.
3. ?

Answer 102

3. adverse and under a claim of right for the statutory period

Question 103

To establish prescriptive right, one must show that the use was
1.
2.
3.

Answer 103

1. open and notorious,
2. continuous
3. adverse and under a claim of right for the statutory period

Question 104

With private prescriptive easement you are getting _______ rights rather than possessory rights of the property, so you don’t own it you just have the right to use it.

Answer 104

use

Question 105

Majority of jurisdictions No _________requirement. Okay if the driveway use you are trying to steal is the same that the true owner uses you can still steal the right to drive down it.

Answer 105

exclusivity

Question 106

Prescriptive Easement – there rights are very narrow for example- my neighbor Angel – I cut across his yard to walk Annabelle to school because it was faster. He saw me looking out his Leni most mornings. He never stopped me. He may have figured what’s the harm.

If I had done that for the requisite statutory period to acquire a prescriptive easement could Annabelle when she turns 16 take the pickup truck, could she take her pickup through Angel’s backyard – no. because that it has to be comparable.

If I walked across with another kid that would have been fine. Still just two people walking. Her driving a truck is different and more damaging then to people walking quickly trying not to be seen.

What if I let her get a dirt bike? She couldn’t ride her dirt bike through there. Unicorn? Couldn’t ride through. That unicorn is likely to leave something behind, hooves damage.

If what you have stolen is a small number of people to walk that is all you get. All you stole was the limited right to walk across. If 112 people roll up that is a problem.

When I stole that it was just two of us. Be careful about prescriptive rights because they are narrow.
!!

Answer 106

!!

Question 107

Question: Golf balls in your yard case. Will the country club acquire a prescriptive easement over your backyard?

Imagine that you are living the dream and bought the house on the golf course, you are a member of the country club and not everybody is Tiger Woods, they keep hitting their golf balls into your yard.

Looking out surveying the golf fashion and the people are trampling over the sod and running through the flowers and making dog mad. Annoying and sets off the back porch camera and you think someone is invading property and grab your gun, but it is just a bad golfer, will the Country club whom all the bad golfers belong to will they acquire a prescriptive easement over your back yard because members are coming into your yard?

Answer 107

they will.

Question 108

How to stop the golfers from getting a prescriptive easement?

Answer 108

activated spray to spray water on them.
Fence is a civilized approach.
Questionable trespassers will be shot on site signs.
Super vicious dogs.
Freak them out to think they have heard somebody.

Question 109

IMPLIED EASEMENTS
STRICT NECESSITY
Othen v. Rosier: The landlocked parcel case

Necessity alone, without reference to any relations between the respective owners of the land is not sufficient to create an implied easement by _______ necessity.

Answer 109

strict

Question 110

In order to establish an easement of strict necessity, one must prove the following:
1. ?
2.
3.

Answer 110

common ownership

Question 111

In order to establish an easement of strict necessity, one must prove the following:
1.
2. ?
3.

Answer 111

use is absolutely necessary (not merely convenient)

Question 112

In order to establish an easement of strict necessity, one must prove the following:
1.
2.
3. ?

Answer 112

necessity existed at the time of the severance

Question 113

Use by express or implied permission or license cannot ripen into an easement by prescription (Minority Rule) !

Answer 113

!