Class 2: Bailments, Easements

Question 1

Review: What is the difference between title assurance v title insurance?

Answer 1

Title assurance is a broad term to do with anyone to do with title to property

Title insurance is a specific contractual obligation

Question 2

Review: What is the heart of the assurance system?

Answer 2

The public records system, the place where documents impacting land are recorded.

Question 3

Review: Why title insurance if we do a title search?

Answer 3

Because public records are not always perfect, so title insurance serves as back-up to the recording system

Question 4

Review: What title system does CND use?

How does it work?

What does the US use?

Answer 4

A Torrens title system

Owners are issued a Torrens Certificate (also referred to as a certificate of title). This Certificate assigns unassailable ownership of real property to the registered titleholder.

The certificate acts as the ultimate authority on the title to a property, and its legal supremacy makes recording deeds unnecessary.

Every state uses their own recording act making rules

Question 5

Review: Hypothetical:

O mortgages Blackacre to A, but does not record the interest. O then later conveys Blackacre to B, who does not know of the mortgage.

What happens at common law?

Under most recording acts?

Answer 5

At common law, B takes the land subject to A’s mortgage because title was determined (at common law) by the timing of the conveyance, and A got a mortgage on BlackAcre first. (B would need to pay the mortgage)

Under most recording acts, a subsequent bona fide purchaser is protected against prior unrecorded interests. So B would be protected.

Important: The common-law rule of “first-in time, first-in right” continues to control UNLESS the person can qualify under the state’s recording act (which most people can).

Question 6

Start of New Content:

Explain the three different types of US recording jurisdictions.

Race Jurisdiction

Notice Jurisdiction
- Whats the tip of a notice jurisdiction?

Race-Notice Jurisdiction

Answer 6

Race jurisdictions: Under a race statute, as between successive purchasers of property, the person who wins the race to record prevails.

SIMPLIFIED: Whoever records an interest first wins.

Notice jurisdictions: If a subsequent purchaser has notice of a prior unrecorded instrument (deed) the purchaser cannot prevail over the prior purchaser.

SIMPLIFIED: If someone buys a property and knows that someone else has interest in it, they lose. If not, they win.

TIP: Start from the bank. If they didn’t have notice, they win.

Race-notice jurisdictions means a purchaser is protected against prior unrecorded interests only if the purchaser:

(1) is without notice of the prior interest and
(2) records before the prior interest is recorded.

SIMPLIFIED: Purchaser gets interest if they have no notice of anyone else AND records before anyone else.

Question 7

What are some characteristics of a race statute?

Answer 7

Knowledge is irrelevant, it’s just a race.

Anything off the record means nothing.

Question 8

What are some characteristics of a notice statute?

Answer 8

Emphasis’s fairness.

If someone buys a property and knows that someone else has interest in it, they lose.

Question 9

Explain the three types of notice regarding a notice statute.

(2 and 3 are constructive notice)

Actual Notice

Record Notice

Inquiry Notice

Answer 9

(1) Actual notice: is where a person is personally aware of a conflicting interest in real property, often due to another’s possession of the property.

(2) Record notice: Notice of a prior interest that would be revealed by doing a title search.

(3) Inquiry notice: Notice based on a purchaser’s duty to investigate relevant circumstances.

(Ex. Are there circumstances that would lead a reasonable person to inquire about another person’s interest in the property?)

Question 10

What are the characteristics of a race-notice statute?

Answer 10

Race-notice tends to strike a balance between the two competing interests of Race & Notice statutes.

Race-Notice statutes help to eliminate lawsuits turning on extrinsic evidence about which deed was delivered first. And helps to avoid “notice” only questions.

Race-notice also punishes non-recording, so it helps make the records complete.

Note: Michigan is a race-notice state, as are the remaining half of the states.

Question 11

Hypothetical:

O who is the owner of Blackacre conveys Blackacre to Alice who does not record the deed.

O then conveys Blackacre to Bob for valuable consideration.

Bob has NO knowledge of Alice’s deed.

Who wins under a notice jurisdiction?

A race-notice jurisdiction?

Answer 11

In a notice jurisdiction, Bob prevails even though Bob did not record the deed from O.

In a race-notice jurisdiction, neither would win as the test is 1)buying without notice AND 2) Win the race to record.

Here both people did buy without knowledge. But the race is ongoing.

To see whether Alice or Bob wins depends on whether O delivered Alice’s deed or Bob’s deed first (common law principle)

But this allegation of delivery of the deed wouldn’t matter in a race-notice jurisdiction if one of the deeds has been recorded.

Then that person wins.

Question 12

Hypothetical: He said this one likely on the exam

O, owner of Blackacre, conveys Blackacre to Alice, who does not record the deed.

O subsequently conveys Blackacre to Bob for valuable consideration.

Bob has NO knowledge of Alice’s deed.

But after O’s conveyance to Bob and BEFORE Bob records, Alice finally records her deed.

Thereafter, Carl purchases Blackacre from Bob.

Would Carl prevail over Alice in a notice jurisdiction?

Answer 12

Shelter Rule: When you buy from a person, you are protected if your seller was protected.

Even though Alice’s recording puts Carl on notice as to Alice’s deed, Carl has no idea whether Bob had notice of Alice’s deed when Bob purchased, which is the main inquiry. This is known as the shelter rule.

Under the shelter rule, a person who takes from a bona fide purchaser that is protected by the state’s recording act has the same rights as the person they bought the property from.

(Thus, Carl is protected if Bob was protected.)

Carl Wins.

Question 13

Hypo: He said this one likely on exam

O conveys Whiteacre to Alice, who does not record.

O subsequently conveys to Bob, who purchases in good faith and for valuable consideration, but does not record.

Alice then records.

The day after, Carl purchases from A in good faith and for valuable consideration.

Bob then records.

Carl then records.

Who prevails under a notice statute? (Give me the 1st, 2nd, 3rd)

A race-notice statute? (Give me 1st, 2nd, 3rd)

This will be an exam question

Answer 13

1) Carl prevails in a notice jurisdiction. WHY?

My answer: Alice is in third place regardless of her recording.
B is in second place and beats Alice as he had no notice.
C is in first place because he bought after Bob and he had no notice.

Since B wins over A, and C bought last without notice, he wins.

Prof Answer: Bob would prevail over Alice because Bob is a subsequent BFP. But Carl would prevail over Bob because Carl had no notice of Bob’s claim

2) Carl also prevails in a race-notice jurisdiction. WHY?

Alice bought without notice and recorded first.
Bob bought without notice and recorded second.
Carl bought without notice an recorded last.

Alice prevails over Bob because Bob did not record before Alice. So Alice can convey good title to Carl.

Note: Even if Carl had notice of Bob’s claim, Carl would prevail over Bob because of the shelter rule.

Question 14

Hypo:

On July 1, Oscar conveys Blackacre to Alice. On July 4, Alice records the deed, which is properly indexed. A few weeks later, on July 20, Oscar conveys Blackacre to Bob for valuable consideration. Bob has no actual knowledge of the earlier conveyance to Alice. The next day (July 21), Bob records the deed.

Who wins in a notice statute jurisdiction? Why?

Who wins in a race-notice statute jurisdiction? Why?

Answer 14

Notice Jurisdiction:

Alice prevails because Bob had record notice of the conveyance from Oscar to Alice.

Race Notice Jurisdiction:
Alice prevails because Alice did not have notice of any prior interests and won the race to record against Bob.

Question 15

On September 15, Olivia conveys Blackacre to Amy, who still has a month on her apartment lease, so she does not take possession of the property. A week later, on September 22, Olivia then conveys to Barb. Barb has no actual knowledge of the conveyance to Amy. Barb records her deed on Sept 24. Amy records her deed on September 25.

Who wins in a race statute jurisdiction? Why?

Who wins in a notice statute jurisdiction? Why?

Who wins in a race-notice statute jurisdiction? Why?

Answer 15

Race jurisdiction?
Barb wins because Barb was the first to record

Notice jurisdiction?
Barb wins in a notice jurisdiction because they had no actual, inquiry, or record notice of Amy’s interest.

Race-notice jurisdiction?
Barb wins in a race-notice jurisdiction because Barb had no notice of Amy’s interest and won the race to record.

Question 16

On April 1, Owen conveys Blackacre, a rural piece of farmland with no house, to Art, who doesn’t move into the property. Two weeks later, on April 15, Owen conveys a mortgage in his property to Banks, who does not know about the conveyance to Art. Art then records his deed to Blackacre on April 16. On the next day, a Saturday, Art conveys Blackacre to Charlie, who plans on turning the farmland into a subdivision. Charlie does not know about the mortgage to Banks. Two days later, on Monday, Banks records the mortgage interest.

1. Does Charlie take Blackacre subject to the mortgage interest to Banks in a race jurisdiction? Why?
2. Would Charlie take subject to the mortgage in a notice jurisdiction? Why?
3. Would Charlie take subject to the mortgage in a race-notice statute jurisdiction? Why?

Answer 16

1. Charlie would not take Blackacre subject to the mortgage because Art prevails over Banks by recording before Banks did. Thus, Charlie is protected by the shelter rule because Art (the person Charlie got the property from) would prevail over banks.
2. Charlie would prevail in a notice jurisdiction because he had no notice of Banks’s interest.
3. Charlie would win in a race-notice jurisdiction because of the shelter rule. Art would win over Banks in a race-notice jurisdiction because Art did not have notice and recorded first. Thus, since Charlie took title from Alex, Charlie is protected by the shelter rule.

Question 17

What is an easement?

Give a few examples

Answer 17

An easement is a non-possessory right to use or enter the land of another

Land at the end of the driveway

Question 18

What is a affirmative easement?

What is a negative easement?

Answer 18

Affirmative easements give the interest holder a right to do some act on land that someone else owns. (e.g. you can go into my home and make a pipeline)

Negative easements forbid one landowner from doing something on land that might harm a neighbor. (e.g., cannot develop the land commercially

Question 19

Hypothetical:

In a deed, W agrees not to allow trees to grow on her property that are more than 30 feet tall in order to preserve the view that M has over W land.

Is this an affirmative or negative easement?

(Trick Question)

Answer 19

It can be both depending on who is doing the tree trimming.

It is a negative easement if W will do the tree trimming. But if M is permitted to enter W’s land and do the tree trimming, then it is an affirmative easement

Question 20

Hypothetical:

Mary has an easement of way through a building on Wendy’s adjacent land. Wendi later demolishes the building and builds a new, state-of-the-art building.

(1) Could Mary use her easement to prevent Wendy from demolishing the building?

(2) If not, does Mary’s easement of way transfer to the new building?

Answer 20

1) No. She has an affirmative easement because she is allowed to cross Wendy’s property. She would need a negative easement to prevent the building of the building, which is not what she likely has in the easement of way.

2) It depends on whether Mary’s easement is appurtenant to the land and not the structure. The language in the easement would control. If it were an easement of way over Wendy’s land, then it would extend to the new building.

Question 21

What is a dominant estate in regards to easements?

What is a servant estate in regards to easements?

Answer 21

A dominant estate the one who gets the easement.

A servant estate the one who has the easement on it. They serve the domination.

Question 22

What is a water easement?

Answer 22

A duty not to interfere with water flow to the dominant estate (but only if the dominant estate has some system that puts the water to use for power)

Question 23

What is a view easement?

Answer 23

View easements – duty not to block a view

Question 24

What is a solar easement?

Answer 24

Solar easements – Amounts to a “don’t block my sun” easement.

Question 25

What is an easement appurtenant?

Answer 25

An easement appurtenant gives the easement rights to whomever owns a parcel of land that the easement benefits.

Question 26

What is an easement in gross?

Answer 26

An easement in gross gives the easement rights to some person – it isn’t dependent on ownership of land.

Question 27

whats the presumption if there is an issue if it is a easement in gross or in appurtenant?

Answer 27

Court will assume it is an easement in appurtenant.

Question 28

Hypothetical:

Justine decides to sell part of her cow farm to Cody. She sells the north 40 acres and the barns to Cody, but she keeps ownership of the 50 cows that currently occupy that north 40 acres.

She’s worried her cows won’t get appropriate watering because Cody is known not to treat his slaughter cows very well, but she doesn’t have enough room for them in her remaining acreage, so she reserves an easement “for the watering of livestock owned by seller.”

Is this an easement appurtenant or an easement in gross?

Answer 28

The court in the actual case this hypo was taken from held that this vague language created an easement appurtenant, which attached to the neighboring land the seller still owned.

It didn’t just attach to Justine personally.

Question 29

What is a dominant tenement (estate)?

Answer 29

It is the property benefited by the easement

The appurtenant easement attaches to the dominant tenement and transfers when the prop changes hands.

Only easements appurtenant have dominant tenements

Question 30

What is a servient tenement (estate)?

Answer 30

It is the property burdened by the easement.

Both easements appurtenant and in gross have servient tenements because there’s always a burdened property.

Question 31

Can a easement in gross be given to others?

Answer 31

Traditionally, easements in gross were only transferrable if they were commercially beneficial. If it was just for a personal benefit, then they couldn’t be transferred.

Modernly, courts have started allowing transfer of all Easements in gross as long as the intent to transfer the easement from person to person is clear.

Question 32

Can easements in gross benefit land?

Is there a dominant estate

Answer 32

Easements in gross only benefit a person – not land.

Therefore, there is no dominant estate, only a servient one (the burdened one).

Question 33

Can easements in gross be divided?

When are the two reasons an easement in gross can be divided?

(1) divisible and (2) exclusive.

Answer 33

Generally, yes, when

(1) the creating document says it is divisible OR

(2) When the easement in gross is “exclusive” (you are the only person who gets it)

What does “exclusive” mean? It means that the easement in gross owner has the sole right to engage in the activity that the easement permits.

Thus, if you share the E in gross right with others, you can’t divide it. You would need all to agree to divide it to add other people.

Question 34

What if I have an easement on gross and I give it to 100 people to use it?

Answer 34

This is not fair, and thus the court will say you went outside the scope of the easement you had.

Question 35

What are the ways to create an easement?

Expressly created, implied by prior use, implied by necessity, created by prescription.

Answer 35

1 Expressly Created – through a writing b/c the statute of frauds applies to interests in land, such as easements.

2 Implied By Prior Use – in certain situations, the law will imply that an easement was created

3 Implied By Necessity – if an easement is the only way to access land or get something done. (Absolute necessity required – not just convenience.)

4 Created By Prescription – earned by regular use, like adverse possession.

Question 36

Wilard v First Church of Christ

Facts: There was a lot that allowed parking for the church. There was an easement that ran with the land only for church purposes. Later owner gave the lot to someone else who was not told about the easement, but it was recorded thus he was given constructive notice.

Issues: Can an easement benefit a third party?

Answer 36

Holding:

Ratio: In modern cases, you can have an easement that benefits a third party. Needs grantor’s intent.

Question 37

Can an easement have a duration for any amount of time?

Answer 37

Easements can have any duration from a term of years to a life estate to a fee simple. The language in the granting document controls

Question 38

What is a license?

What is the main difference between a license and a easement?

Answer 38

A license is oral or written permission given by the land’s occupant allowing someone to do some act that would otherwise be a trespass.

Licenses are typically revocable, with some exceptions. Easements are not revocable.

Question 39

Hypo:

Lindsey gives Oscar $1000 for a license giving Lindsey the right to cut timber on Blackacre. Does the money turn Lindsey’s right into an easement?

What happens if Lindsey assigns her rights to Peter?

Answer 39

No. O’s permission is just a license. We often pay for licenses (e.g. video games; computer programs)

In the majority of states, the assignment would be null.

Question 40

What is an easements by estoppel? (equitable principle)

Answer 40

An easement by estoppel (aka irrevocable license) may be found when the owner of property misleads or causes another to change their position to their prejudice.

Example: I wouldn’t have put money into this path to your property if I thought this was a licence. Instead, I thought it was an easement, and that benefits you as well. You misled me, I relied on it. (equitable principle)

Question 41

Can you assign a license?

Answer 41

No UNLESS given EXPLICIT permission

Question 42

Is it a lease or a licence? How do you determine?

What are the four factors to determine intent to lease or licence?

1. How would use affect this
2. How would the specificity of location affect this
3. How is payments affect this
4. Duration how does this affect this.

Answer 42

Transferring possession is essential to a lease; an easement holder or a licensee has only the right to use.

Factors to determine intent to lease or license:

1) uses permitted (the more the use of space is limited to a specific use, the more likely an easement);

2) the specificity of location (the more specific a location, the more likely a lease);

3) rent reserved (periodic payment may indicate a lease);

4) Duration (a lease is limited in time; easements are usually unlimited)

Question 43

HYPOTHETICAL:

Oscar leases Blackacre to Tom for the sole purpose of Tom’s timbering of the property.

Why would Tom prefer a 1) lease 2) a easement or 3) a license?

Answer 43

Because a lease is a possessory interest in land, so it gives Tom an exclusive right to use the land for the term of the lease. Any other leasee’s must be approved by Tom. Thus, he can exclude his competitors.

A license or an easement are non-possessory rights, so the use doesn’t need to be exclusive unless it is expressly made to be exclusive.

Question 44

What is an easement by prior use?

Answer 44

An Easement by Prior use is an apparent and continuous use which the parties would reasonably expect to continue when the land is divided.

Courts will imply an easement when it is reasonably necessary (American rule; majority rule today)

Question 45

Why does it matter if it is a lease or a license?

Answer 45

Because only a tenant — not an easement holder — can bring possessory actions such as ejectment, trespass, or nuisance

Question 46

x

Answer 46

x

Question 47

Easements by necessity are type of implied easement. What elements are required?

(unity, necessitiy and existing at the time of xx)

Answer 47

1) Unity of ownership of the alleged dominant and servient estates.

2) The right of way is a necessity, not a mere convenience (strict necessity required); AND

3) The necessity must exist at the time of the severance of the estate.

Question 48

Is strict necessity needed for an easement by necessity?

What does this mean?

Answer 48

Yes.

Strict necessity means no other way out

Question 49

What’s the difference between implied easements by prior use and implied easements by necessity?

Answer 49

Easements by necessity apply only to rights of way – ingress and egress – to landlocked parcels.

Easements by necessity do NOT require that the use be in existence at the time of creation – that is, it need not be a prior use.

Question 50

Hypo:

Alex owns a landlocked parcel with an easement of necessity over Wendy’s land. But because Wendy always gives him a mean look when Alex uses this right of way, he decides to buy a piece of land at auction that allows him to reach a public road without going on Wendy’s land. He later sells that newly purchased strip of land for 10 times what he paid for it, and then he resumes using Wendy’s land.

Can Wendy prevent Alex from doing this?

Answer 50

Yes. Easements by necessity end when the necessity ends. Thus, the necessity ended when Alex bought the strip of land.

Alex’s sale of the strip of land doesn’t make it necessary again. The necessity has to arise out of the severance of the joint property.

Question 51

What is a prescriptive easement?

If there is a licence how would this affect it?

Answer 51

Prescriptive easements are easements by adverse possession

Licence is permission, so it’s not adverse.

Question 52

Can permission be a prescriptive easement?

Answer 52

No as it has to be adverse aka adverse possession

Question 53

What are the elements for prescriptive easements? (OCEAN)

Answer 53

OCEAN

Opean and notrious
Continuous
Exclusive
Actual
Adverse

Question 54

How is exclusivity different for prescriptive easements?

Answer 54

The use can be shared with the dominant and servient estates, but it cannot be shared by others (the public, other express easement holders, etc.)

Question 55

Hypo:

Right next to Wendi’s home is a golf club. Every day, several golf balls are driven onto her property, and the players routinely come onto Wendi’s property to retrieve the golf balls. If this continues for the statutory period, will the golf club acquire a prescriptive easement over Wendi’s property?

How to prevent this?

Answer 55

Yes! This actually happened to Conrad Hilton (of Hilton Hotels fame), and he lost.

To prevent this, you would need to erect a fence to interrupt/stop people from getting the golf balls – or get a written agreement with the club to ALLOW/permit them to get the balls, which would negate the hostility element.

Question 56

Hypo:

Eric owns Blackacre. He records a deed with himself naming himself the grantee of an easement for a road over Blackacre (from adjacent property that he also owns).

Is this easement valid?

Answer 56

No.

Rule: A person cannot create an easement in their own property.

Question 57

Hypo:

Kyle deeds to his next-door neighbor, Tim, the right to park in his parking lot, which gives Tim an easement. But Tim then sells his home to his sister, and moves five miles away. When Tim comes to visit he continues to park in Kyle’s lot, and Kyle doesn’t object. But Kyle does object when Tim’s sister parks in his lot.

What would Kyle’s best argument be for this discrepancy?

Answer 57

That this is an easement in gross that only was intended to benefit Kyle, no matter where he lived.

Tim’s sister would argue that the intent was for an easement appurtenant, which benefits the land. Thus, when she bought Tim’s property, she now gets the benefit of the easement.

Question 58

Hypo: This would be an exam question

Courtney owned two adjoining lots with existing houses on them. She sold one to Natalie. A driveway and a sewer line ran from Natalie’s new house to the street. After the sale, part of the driveway and part of the sewer line ran over (and under) Courtney’s lot. The deed conveying the lot to Natalie did not mention the driveway or sewer line.

Does Natalie have a right to continue using the drive or sewer line?

Answer 58

Yes, if she can show all the elements of an easement by prior use.

(1) There was unity of ownership that was severed. (2) the use was likely in place before the severance. (3) the use was visible for the driveway and apparent for the sewer; and (4) it is likely reasonably necessary to use the lot for a residence.

Question 59

Hypo:

The deed from Matt to DeMarr, which land-locks DeMarr’s property provides for access to DeMarr’s land over a strip of Matt’s land that is narrow, steep, and very inconvenient for DeMarr to use. DeMarr later protests that he needs better access and asserts a way of necessity.

Is DeMarr likely to get an easement by necessity? Why or Why not?

Answer 59

No. There must be strict necessity in most jurisdictions – that means no access. Inconvenient access isn’t good enough, especially in situations where an easement of way was already bargained for in the land transaction.

Question 60

What do we mean by “Scope”? for easements

Answer 60

The “scope” refers to the location, intensity, and manner of use for the easement.

Question 61

What is the general rule for easements scopes?

Answer 61

General Rule on Scope of Easements

An easement holder may make such use of the easement that is reasonably necessary for the enjoyment of the dominant estate and not unreasonably burdensome to the servient estate.

Question 62

Brown Case

Can an easement be used in connection with a non-dominant estate?

Answer 62

Rule regarding the scope of use: An easement may not be used in connection with a non-dominant estate.

Question 63

How do you determine the easement’s location?

For express easements?

For prior use and prescriptive easements?

For easements by necesity?

Answer 63

For express easements, the terms of the document.
If the location is not expressly stated, then past usage (if any) can determine it – but sometimes courts have to get involved to determine its location.

For prior use and prescriptive easements, the location is fixed by the use made at severance (or the start of the prescriptive period).

For easements by necessity, the servient estate owner has a reasonable time to locate the easement – if the servient owner takes too long or locates it unreasonably, then the dominant owner can reasonably locate it.

Question 64

Hypo:

O in 1900 granted E an easement appurtenant over O’s land so E could reach a public road. In 1900, both properties were rural, and travel was by foot, horse, and buggy. 100 years later, O’s successors and E’s successors own the respective properties.

Are E’s successors limited to using foot, horse, and buggy to travel over the dirt-path easement?

Answer 64

No. Cars, trucks, and motorcycles are natural developments, so the scope of the easement will likely be adjusted to accommodate progress.

Question 65

What is the scope of prescriptive easements?

Answer 65

Rule: The use of a prescriptive easement once acquired must (1) be consistent with the general kind of use by which the easement was created AND (2) be consistent with what the servient owner would reasonably expect to lose by failing to interrupt the adverse use.

Example: A prescriptive easement acquired by herding livestock with people on horses has been held to be not usable by motor vehicles (motorcycles in the actual case).

“Anyone who does not think there is a significant difference between horses and motorcycles may wish to ponder why it is that carriages in Central Park are pulled by horses, not Hondas.”

Question 66

What are the 8 ways to determinate an easement?

Answer 66

1. Release: These typically require a writing to comply with the Statute of Frauds.
2. Expiration: If the terms of the easement limit it by date or by some condition subsequent, then it ends on that date or on the occurrence of that event.
3. End of necessity (for easements by necessity)
4. Merger: Ends by merger if the easement owner later becomes the owner of the servient estate.
5. Estoppel: Can end if the servient owner reasonable relies to their detriment on statements made by the easement holder.
6. Abandonment (the most common way)
7. Prescription: If the servient owner wrongfully and physically prevents the easement from being used for the prescriptive period, then the easement terminates.
8. Condemnation: Gov’t exercises its eminent domain power.

Question 67

Hypo:

Farmer Ted sold Erin a landlocked lot – Lot 36. In the deed, Farmer Ted deeded Erin a ten-foot-wide easement for ingress and egress over Lot 24, which allowed Erin to reach Cove Road. Farmer Ted continued selling lots. A year later, he deeded Lot 24 to Wilbur, subject to Erin’s easement of way. A year after that, Erin purchased Lot 35, which adjoins her lot and fronts High Street. Wilbur has always wanted to get rid of the easement over his lot.

Does the easement over Wilburn’s lot end when Erin buys lot 35?

Answer 67

No. This was an express easement that was granted in Erin’s deed – not an easement created by necessity. So even though the necessity ended, that doesn’t impact her express easement over Lot 24.

Question 68

KNOW THIS ONE:

Farmer Ted sold Erin a landlocked lot – Lot 36. In the deed, Farmer Ted deeded Erin a ten-foot-wide easement for ingress and egress over Lot 24, which allowed Erin to reach Cove Road. Farmer Ted continued selling lots.

A year later, he deeded Lot 24 to Wilbur, subject to Erin’s easement of way. One year later, Wilbur sells his property (with a home on it) to Erin, who moves into Wilbur’s home. Six months later, she finally finds a buyer for Lot 36, so she sells it by quitclaim deed (where she doesn’t mention anything about the easement).

Is her original easement still in existence?

Answer 68

No. The easement terminated when Erin bought Wilbur’s lot because she owned both the dominant and servient estates – and you cannot have an easement in your own property.

Note: They buyer may have to sue to try and get an implied easement by necessity