1L US Property "What if..."s Flashcards
O, owner of Blackacre, executes and delivers a deed for Blackacre to her daughter, A, as a gift. Subsequently, O tells A that she would like Blackacre back, and A, a dutiful daughter, hands the deed back to O and says, “The land is yours again.” O tears up the deed. Who owns Blackacre?
A owns Blackacre. Since title passed to A by the deed from O, the Statute of Frauds requires a deed from A to O signed by A to pass title back to O.
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?
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.
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).
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. Who wins under a notice jurisdiction? A race-notice jurisdiction?
In a notice jurisdiction, Bob prevails even though Bob did not record the deed from O.
In a race-notice jurisdiction, whether Alice or Bpb wins depends on whether O delivered Alice’s deed or Bob’s deed first.
But this allegation of delivery of the deed becomes irrelevant in a race-notice jurisdiction if one of the deeds has been recorded. Then that person wins.
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?
Yes, 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.)
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 in good faith and for valuable consideration. Bob then records. Carl then records. Who prevails under a notice statute? A race-notice statute?
Carl prevails in a notice jurisdiction. 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.
Carl also prevails in a race-notice jurisdiction. 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.
In a deed, Wendy agrees not to permit trees to grow on her property that are more than 30 feet tall in order to preserve the view that Mary has over Wendy’s land. Is this an affirmative or negative easement?
It can be both depending on who is doing the tree trimming. It is a negative easement if Wendi will do the tree trimming. But if Mary is permitted (in the deed) to enter Wendi’s land and do the tree trimming, then it is an affirmative easement.
Mary has an easement of way through a building on Wendy’s adjacent land. Wendy 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?
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.
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.
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?
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.
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?
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.
Oscar leases Blackacre to Tom for the sole purpose of Tom’s timbering of the property. Why would Tom prefer a lease over a profit (easement) or a license?
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.
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?
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.
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?
Yes! This actually happened to Conrad Hilton (of Hilton Hotels fame), and he lost.
How to prevent this?
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.
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?
No.
Rule: A person cannot create an easement in their own property.
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?
That this is an easement in gross that only was intended to benefit Tim, 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.
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?
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.
