Easements
Common Owner owned two adjoining parcels (Parcel A and Parcel B). Parcel A abutted Major Road. Parcel B bordered a river and a public timber road that meandered ten miles to a county road. Common Owner never used the timber road, preferring to cross Parcel A to Major Road. Four decades ago, Common Owner sold Parcel B to Chad. The deed to Chad did not grant Chad an easement over Parcel A. Five years later, Common Owner sold Parcel A to Dan, the deed to Dan “excepting and reserving to Chad, his heirs and assigns, a right-of-way located at [a description locating the roadway over Parcel A]” from Parcel B to Major Road. In the ensuing years, members of the public generally and the various owners of Parcel B used the right-of-way to get to and from Major Road. After several interim conveyances, Ed bought Parcel A. Last year Hilton bought Parcel B and built River Inn, a 50-room motel, on Parcel B. Ed sought to bar Hilton from using the right-of-way over his land to reach Major Road. All of these deeds were properly recorded.
(a)What type of easement is Hilton claiming? If there is an easement, would Ed’s land (Parcel A) be the dominant or servient estate?
(b)Explain how, if at all, your answer would change if Common Owner first conveyed Parcel B to Chad, then later deeded an easement to Chad, and still later deeded Parcel A to Dan?
(c)Does Hilton have an easement by estoppel (or an irrevocable license)? An easement implied from prior use? An easement implied by necessity?
(d)Does Hilton have an easement by prescription?
(a)An express, affirmative easement appurtenant. Hilton claims the easement is an easement appurtenant because it benefits owners of specific land, Parcel B. Four reasons support this: First, the deed reserving the easement reserves it to Chad, his heirs, and assigns, which is traditional language indicating an easement will run with the land. Second, the surrounding facts indicate the main reason for the easement is to gain access to Parcel B from Major Road for all purposes and not for a use peculiar to Chad. Third, an easement appurtenant is presumed unless there is some indication an easement in gross was intended. Nothing indicates such an intent here. Fourth, there is a dominant estate (not possible with an easement in gross). The easement is affirmative because Hilton asserts his rights to go over and use Ed’s property. The troubling issue is whether an express easement was created at all. Hilton claims an express easement, but he does not have one in a majority of jurisdictions. Courts in those jurisdictions hold that Hilton did not have an express easement because the deed from Common Owner to Chad did not grant Chad, the original grantee and Hilton’s predecessor in interest, an easement. Common Owner did attempt later in his deed conveying Parcel A to Dan to reserve an easement in favor of Chad and successor owners of Parcel B for a right-of-way over Parcel A. Unfortunately, Chad was a stranger to the deed. Chad was neither the grantor nor the grantee in the deed between Common Owner and Dan. The controversy then turns on whether the jurisdiction would allow Common Owner to reserve an easement to a stranger to the deed. Courts using the majority rule conclude that the Common Owner could not reserve an easement in land that he no longer owned, and that even though this sometimes frustrated the Common Owner’s intent, the frustration could easily be avoided by the Common Owner’s conveying the easement directly to the third party. In a minority of jurisdictions, courts adopt the welcome stranger rule and give effect to Common Owner’s intent, particularly when the purchase price paid the Common Owner reflects the imposition of an easement. If Hilton has an easement, his property is the dominant estate. Ed’s burdened land would be the servient estate.
(b)Hilton would then have an express easement over Parcel A. His easement comes from a deed specifically granting Chad, Hilton’s predecessor in interest, an easement appurtenant. Chad recorded the deed and the deed to Ed excepts the easement to Chad. The answer would be the same if Common Owner had deeded the easement to Chad one nanosecond before delivering Parcel A to Dan. Using two documents instead of one makes all the difference in outcome.
(a)O, having full ownership, conveys Blackacre “to A for ten years.” What is A’s estate?
(b)What is O’s interest?
(c)What estate will A and O have in ten years?
In the following conveyances, does A hold an estate in fee simple absolute?
(d)O conveys “to A.”
(e)O conveys “to A and his heirs.”
(f)O conveys “to A and his heirs, but if A dies, to B and his heirs.”
(a)A has a term of years or a leasehold, a nonfreehold estate. It is a present possessory estate.
(b)Just after the conveyance, O has a reversion in fee simple absolute. It is a future interest (currently nonpossessory). See infra Chapter 10.
(c)After a term of years ends, A no longer has any interest in Blackacre. O will possess the grandest of them all—a fee simple absolute, which is what we think of when we say that a person has “ownership” of real property.
(d)Yes. Today A holds an estate in fee simple absolute. The words of purchase are “to A” and the words of limitations are supplied by the canon of construction that a fee simple absolute is preferred unless the language of the deed or will indicates the grantor or testator meant to transfer a lesser estate.
(e)Yes. Although other words might be used, “to A and his heirs” are the recommended words to create a fee simple absolute.
(f)No. A’s estate is something less. The words of purchase are the same, but the words of limitation are “and his heirs, but if A dies to B and his heirs,” and indicate that the grantor intends that descendibility and devisability not be part of A’s estate; thus no fee simple absolute was intended. Since A must die, A’s death is considered the natural termination of his interest and not a condition subsequent. A holds a life estate. See Mark Reutlinger,
City faced a financial problem. It was primarily a residential community with a small business tax base. Its citizens were poor. To reduce the cost of operating its schools, City amended its zoning ordinance to limit the definition of ‘family’ for purposes of ‘single-family’ residential districts, in relevant part, to allow homeowners to have grandchildren from only one child live with them in the home. Living with Mrs. Gramm in her home was her son, Dale, Sr., and his son (Gramm’s grandson), Dale, Jr. When another grandson, John, became orphaned, Gramm took him in. Since the city ordinance prohibited Gramm from having grandchildren from more than one of her children live in her home with her, City demanded Gramm remove John from her home. When Gramm refused to make John leave, City brought a criminal action against her. Gramm claims the ordinance is unconstitutional.
(a)Does City have a legitimate interest in reducing the financial cost of education in its schools?
(b)Was limiting the number of school age children who lived with grandparents rationally related to the promotion of any legitimate state interest?
(c)Would the outcome of the case be affected if a court decided the Constitution protects the sanctity of the family including extended families of parents, children, grandparents, grandchildren, aunts, uncles, and cousins? If so, how and why?
(a)City has a legitimate interest in financing and controlling the cost of operating its school system. For many jurisdictions, schools are their largest funding obligation.
(b)Limiting the number of school age children who could live with their grandparents was rationally related to City’s reduction the cost of education in the city schools. Each additional student adds an extra cost to operating the school system’s expenses. Reducing the number of students, therefore, reduces the education costs City must fund.
(c)A finding the Constitution protects the sanctity of the extended family dramatically changes the outcome of this case. The ordinance under the substantive due process rational relationship test illustrated in (a) and (b) would be found constitutional and enforceable. If the family relationship is a fundamental constitutional right, however, the deference normally afforded government ends and the government bears a heavier burden. In this case City must show it has compelling government interest (which is a significantly higher burden than proving a legitimate government interest) that outweighs the individual’s constitutional right and, moreover, that the ordinance was drafted to be narrowly tailored to achieve that compelling state interest while infringing as little as possible on the individual’s constitutional right. City will lose. Saving money is a legitimate state interest but not one so compelling as to abridge a citizen’s constitutional rights. Moreover, this ordinance was not narrowly tailored. The ordinance, for example, prohibited Gramm from having two grandsons live with her, but would have allowed a dozen grandchildren to live with her if they all had the same parent.
David owned two lots on a heavily traveled industrial road. He sold one lot to Austin by a deed containing a covenant prohibiting the sale of beer, wine, and intoxicating liquor on the lot. Later David sold the second lot to Tyler, the deed also containing a covenant prohibiting the sale of beer, wine, and intoxicating liquor. Both deeds provided the alcohol ban would be binding on the purchasers (Austin and Tyler respectively), their heirs, and assigns. David inserted the covenant into the deeds because he staunchly opposes alcohol consumption. All deeds were properly recorded. Austin sold his lot to Oren, who wanted to open a convenience store and sell beer and wine in the store.
(a)Is the benefit personal to David or appurtenant to Tyler’s lot?
(b)If David chooses not to enforce the covenant, does Tyler have standing to enforce the covenant?
(c)If Tyler chooses not to enforce the covenant, does David have standing to enforce the covenant?
(a)The deed does not say that the benefit runs with the land, but that is not unusual and has not prevented courts from implying that the benefit runs. A court might resort to the rebuttable presumption that the benefit is appurtenant if the promisee owns nearby land that could be benefited. David owns the adjoining lot. On these facts, however, the presumption will be rebutted. When David sold the second lot, the deed included the same covenant, and David owned no more land at that time. It appears David did not insert the covenant into either deed to benefit his retained land, but for reasons personal to him (i.e., his staunchly prohibitionist convictions). The land, moreover, is on a “heavily traveled industrial road,” which seems to indicate that David did not intend to benefit Tyler’s lot by burdening Austin’s lot. Under this interpretation, the benefit is personal to David.
(b)If the benefit of the covenant is personal to David, Tyler would not have standing to enforce it. Only one of the two (David or Tyler) can enforce the covenant—Tyler does not succeed to the right to enforce if David chooses not to enforce the covenant.
(c)The answer depends on the answer in Explanation (a) above. Only one person, David or Tyler, has standing to enforce the covenant. If the conclusion in (a) is incorrect, and the benefit is appurtenant to Tyler’s land, David clearly would not have standing to enforce the burden; Tyler would. If, on the other hand, the benefit is personal to David, he can enforce the covenant against Oren in most jurisdictions, and Tyler would have no say in the matter. In some states, however, the burden will not touch and concern the burdened property (or at least the burden will not run with the land) unless the benefit also touches and concerns benefited property. In those states, since David asserts the benefit is personal to him and not appurtenant to Tyler’s land, the burden will not run to Oren at all. Thus, even though David has standing, there is no covenant to enforce.
Jacy owns Lakeacre, a five-acre lakefront parcel of land that is ideal for swimming and camping. Her daughters had a great experience in scouting, so she decides to let the local Girl Scout council (“Newtown”) use the property. Jacy has decided not to require any payment from the Council. Jacy and the Council sign the following writing: Jacy hereby leases the property known as “Lakeacre” to the Newtown Girl Scout Council for so long as the Council desires to use the property for Girl Scout purposes.
The Newtown Girl Scout Council probably has obtained which of the following interests in Lakeacre?
A.Tenancy for years.
B.Easement.
C.Life estate.
D.Fee simple subject to condition subsequent.
E.Tenancy at will.
Of the five alternatives given, E is the best choice. This question requires that you understand the distinctions between leaseholds, easements, and freehold estates. Because the grantee is an entity rather than a natural person, a life estate is not feasible. A fee simple subject to condition subsequent will not work because the writing uses fee simple determinable vocabulary (“for so long as”) rather than the words that signal a fee simple subject to condition subsequent. A tenancy for years is not appropriate because that type of leasehold requires a fixed term, and we cannot tell how long the Council will “desire” to use the property. The second-best choice is B. Jacy might have granted the Council as easement for swimming and camping purposes, but what cuts against this is the word “leases” in the grant, which implies that the Council has the right to possess the property (an easement is a nonpossessory right to use another’s land). Also, the grant does not expressly limit the Council’s use rights to swimming and camping, which typically is done expressly in the grant of an easement. A tenancy at will honors the parties’ intention that they should have a lease relationship, and it facilitates the idea that the Council’s estate should continue at the will (“desire”) of the Council.
Common Owner owned two adjoining parcels (Parcel A and Parcel B). Parcel A abutted Major Road. Parcel B bordered a river and a public timber road that meandered ten miles to a county road. Common Owner never used the timber road, preferring to cross Parcel A to Major Road. Four decades ago, Common Owner sold Parcel B to Chad. The deed to Chad did not grant Chad an easement over Parcel A. Five years later, Common Owner sold Parcel A to Dan, the deed to Dan “excepting and reserving to Chad, his heirs and assigns, a right-of-way located at [a description locating the roadway over Parcel A]” from Parcel B to Major Road. In the ensuing years, members of the public generally and the various owners of Parcel B used the right-of-way to get to and from Major Road. After several interim conveyances, Ed bought Parcel A. Last year Hilton bought Parcel B and built River Inn, a 50-room motel, on Parcel B. Ed sought to bar Hilton from using the right-of-way over his land to reach Major Road. All of these deeds were properly recorded.
(c)Does Hilton have an easement by estoppel (or an irrevocable license)? An easement implied from prior use? An easement implied by necessity?
(d)Does Hilton have an easement by prescription?
(e)What should Hilton do if a court rules he has no easement of any type over Parcel A?
(c)Assuming the jurisdiction recognizes an easement by estoppel or an irrevocable license, on the facts given, Hilton would have neither. Nothing in the facts indicates Hilton’s use would not be revocable, something he must have known when building the motel, and the current use of a license does not imply its indefinite continuance. If Hilton used the right-of-way as a license, it would be a revocable one, despite its long-standing use. On the other hand, Hilton should prevail on claim for an easement implied from prior use. The easement will be an implied grant. Common Owner owned both parcels. He crossed Parcel A to reach Parcel B. The quasi-easement was apparent, probably by some trail or road so long as the Common Owner used it. This claim may turn on the necessity element. If the state demands strict necessity, Hilton probably loses since Hilton can use a winding timber road that was in place when the property was severed. In addition, courts in a few jurisdictions might require Hilton to use the river. Because this is an implied grant and not an implied reservation, however, most jurisdictions require reasonable rather than strict necessity. Since the roadway over Parcel A seems reasonably necessary for the fair enjoyment of Parcel B, Chad likely received an implied easement from prior use, which passed with the property to Hilton. Hilton does not have an easement implied by necessity. Two elements for implying the easement by necessity for right-of-way are satisfied: Common Owner was the common owner and the severance of the property caused the necessity, but the necessity for this easement was at most a reasonable and not a strict necessity since the owner of Parcel B, Chad, could have left and entered Parcel B by way of the timber road, time consuming as that may have been.
(d)Hilton may have an easement by prescription. Parcel B landowners have been traversing Parcel A for four decades, since Common Owner initially sold the property to Chad. (Common Owner himself traversed Parcel A, but Common Owner’s time cannot be tacked to determine the time of actual use.) All Parcel B owners’ use from Chad to Hilton can be tacked to satisfy the statute of limitations period and other elements. Use continued over four decades satisfies even the longest statutory period. In a few states, Hilton could benefit from a shorter statutory period if the reservation to Chad in the deed to Dan constituted color of title. Many of the elements are noncontroversial. Actual use, open and notorious use, and continuous and uninterrupted use are all met, the facts not indicating otherwise. Adverse and hostile use, as well as (where applicable) exclusive use are more difficult. Most jurisdictions do not require exclusive use, so the exclusive use element would be no problem there. The exclusive use element in the states that do demand exclusive use may be a problem because the facts say the general public used the right-of-way. Chad and all successors, as far as we can tell, used the right-of-way as the owner of the adjoining tract rather than as a member of the general public. Hilton should persuade a court he and his predecessor satisfy the exclusive use element. The hostile use element should be satisfied, also. Common Owner’s attempted reservation of an easement to Chad indicates he recognized a claim by Chad to an easement over his land at least as of the day the reservation was included in the deed to Dan. (Alternatively, a court easily could conclude that Chad claimed a right from the date he bought the property.) No evidence even suggests that Chad or anyone else in the chain of title renounced the claim to the right-of-way. In summary, Hilton should have an easement over Parcel A, either as an easement implied from prior use or by prescription. In some states, Hilton would have an express easement, though in a majority of states he does not qualify since his predecessor was a stranger to the deed reserving the easement.
(e)Assuming Hilton exhausts all of these options and all his appeals, Hilton could negotiate with Ed to purchase either an easement over Parcel A, Parcel A itself, or an easement over other adjoining lands for access to Major Road. Some western jurisdictions by statute authorize private condemnation actions under certain circumstances. Hilton may have such a right under the statute. If he exercises this right, he will have to pay Ed the fair market value of the roadway, but at least Ed could not refuse to complete the transaction. Hilton might convince the local government that a road along his property line would serve a public need, and have the local government purchase the land and build a road. This may take longer than Hilton wants to wait, however. If all else fails, Hilton could use the meandering ten-mile timber road.
What estates are created in the following transfers?
(a)O conveys “to A and his heirs so long as the property is used as a residence.”
(b)O conveys “to A and her heirs, on the express condition that Blackacre be used only for residential purposes, but if it ceases to be used for such purposes, then O and her heirs shall have the right to reenter.”
(c)O conveys “to A, provided that the estate granted shall cease and determine if liquor is sold, used, or stored on the premises.”
(d)O conveys “to A and his heirs, it being my wish and purpose in making this conveyance that the property be used for residential purposes.”
(e)O conveys “to A and his heirs, provided further that O and A agree and promise that the property shall only be used for residential purposes.”
(a)A has a present interest in fee simple determinable, followed by O’s future interest, a possibility of reverter, held in fee simple absolute. See Thomas Bergin & Paul Haskell, Preface to Estates in Land 48 (2d ed. 1984).
(b)A has a present interest in fee simple subject to a condition subsequent. O’s future interest is a right of entry or a power of termination. If, after the terminating event is described, the last clause were to read instead “B and his heirs shall have the right to reenter,” A would hold a fee simple subject to an executory limitation, and B would hold an executory interest in fee simple absolute.
(c)This is a conveyance with words indicating a fee simple determinable (the “cease and determine” phrase, indicating an automatic shift of the fee simple back to grantor O) and with words indicating a fee simple subject to a condition subsequent (the “provided that” language). In this ambiguous grant, the modern canon of construction disfavoring forfeiture and preferring finding the larger estate in the grantee leads to this conveyance being a present interest in A, held in fee simple subject to a condition subsequent, O’s retaining a right of entry at the moment of the conveyance.
(d)A has a fee simple absolute. The additional language is precatory language, indicating O’s desire, but is neither a condition nor a covenant, and therefore is unenforceable.
(e)A has a fee simple absolute. The language neither makes the interest into a fee simple determinable nor subjects it to a condition subsequent. Rather, the promise is a covenant to use the property as a residence; when he does not, the breach of this promise subjects A to contract remedies (e.g., damages or an injunction). The difference between a condition and a covenant is that breach of a condition results in a forfeiture of the property while the owner retains ownership when a covenant is breached, but may be subject to monetary damages or, more likely, an injunction.
Logan bought four lots in the city of Sugar Creek. Logan’s four lots were zoned B-Business allowing all legal businesses. Logan leased the four lots to Die-Cast Manufacturing, a die-casting company. The Sugar Creek city council later rezoned the four lots to CB-Central Business, restricting the district to retail establishments. Manufacturing concerns were not permitted. Will Die-Cast Manufacturing now be forced to relocate outside the district?
Assuming Sugar Creek’s ordinance authorizes nonconforming uses (which is highly likely), Die-Cast Manufacturing may continue its die-cast operations on the four lots. Since Die-Cast was in operation before the more restrictive zoning ordinances became effective, it may continue its die-cast operations as a nonconforming use. The fact that Die-Cast is merely a tenant and not the landowner is irrelevant. The nonconforming-use status applies to use and structures, not to the specific owners at the time the ordinance was enacted. A tenant as well as the owner
David owned two lots on a heavily traveled industrial road. He sold one lot to Austin by a deed containing a covenant prohibiting the sale of beer, wine, and intoxicating liquor on the lot. Later David sold the second lot to Tyler, the deed also containing a covenant prohibiting the sale of beer, wine, and intoxicating liquor. Both deeds provided the alcohol ban would be binding on the purchasers (Austin and Tyler respectively), their heirs, and assigns. David inserted the covenant into the deeds because he staunchly opposes alcohol consumption. All deeds were properly recorded. Austin sold his lot to Oren, who wanted to open a convenience store and sell beer and wine in the store.
(d)Does the burden of the real covenant bind Oren?
(e)Would your answer to (d) change under the following facts: David included the covenant in the deed to Austin because David operated a bar and grill on the second lot and did not want Austin or anyone else selling beer and alcohol in competition with David’s bar. David later sold the bar and grill to Tyler by a deed that did not contain the covenant.
(f)Assume, instead of inserting a covenant prohibiting the sale of beer, wine, and other alcoholic beverages, the deed conveyed the lot to “Austin, his heirs, and assigns, as long as no beer, wine, or other alcoholic beverages are sold on the premises,” and David deeded the second lot to Tyler with the same restriction. Austin sells to Oren, who wants to operate a convenience store that sells beer and wine. What result?
(d)This Explanation also depends on Explanation (a) and the law of the jurisdiction. For the burden to run, the original parties must have intended the burden to run. The intent to run element is met: The deed provided the covenant would bind Austin, his heirs, and assigns. Also required for the burden to run are horizontal and vertical privity. In all jurisdictions except Massachusetts, the horizontal privity of estate element is satisfied since the covenant was created in a deed transferring the property from David to Austin. Since Austin transferred his interest to Oren, vertical privity of estate exists, too. Normally a covenant prohibiting the sale of alcohol would touch and concern the burdened land, and so a majority of courts would find. Thus, in a majority of jurisdictions, the burden runs with the land and is binding on Oren. The notice requirement for the equitable servitude also is met since Oren at a minimum had constructive notice of the restriction in a recorded deed in his chain of title. In a few states, however, if the benefit was personal to David rather than appurtenant to Tyler’s property, a court might refuse to enforce the burden against subsequent purchasers. See Explanation (c), supra. If the benefit was appurtenant to Tyler’s property, the burden would run with Oren’s land in all jurisdictions.
(e)The new facts simplify the analysis. All the elements for the burden to run are met as in Explanation (d). Moreover, the new facts support an argument that the covenant was for the benefit of the retained lot, protecting David’s bar and grill operations. Thus a court would find the benefit was appurtenant to the lot now owned by Tyler. Since the burden and benefit touched and concerned adjoining properties, the burden ran with Oren’s land and would be binding on Oren.
(f)The Example explores the difference between a covenant studied in this chapter, and a condition subsequent studied in Chapters 9 and 10, supra. David in Example (f) did not give Austin a fee simple absolute subject to a covenant. Instead, he granted Austin a fee simple determinable. David retained a possibility of reverter. The condition subsequent is the sale of beer, wine, or other alcoholic beverages on the premises. If alcohol is sold on the premises, Austin (or his heirs or assigns: Oren here) loses all interest in the land, and the property automatically reverts to David or his heirs. Tyler as the owner of the adjoining lot has no rights to Oren’s land. In contrast, the sale of alcohol on the premises under the original facts would breach a covenant. Oren still would own the land. David (if the benefit was personal to him) or Tyler (if the benefit was appurtenant to his land) could enjoin the sales or seek monetary damages. So the consequences flowing from a violation of a condition are much more draconian than the consequences resulting from the breach of a covenant. Most restrictions on use today are expressed as covenants. Purchasers understandably are reluctant to purchase property subject to conditions subsequent.
In May, Farmer Jones plants corn in his field. The corn will be ready to harvest in September. On August 4, Farmer Jones makes an inter vivos gift of his farm to his relatives Maria and Jose. To document the gift, he signs and delivers a warranty deed, which conveys his entire farm “to Maria for life, then to Jose and his heirs.” On September 10, the crop is ready to be harvested. Who owns the crop?
A.Farmer Jones.
B.Maria.
C.Jose.
D.Farmer Jones, Maria, and Jose each have a one-third interest as cotenants.
E.Maria and Jose each have a one-half interest as cotenants.
F.Maria owns a life estate in the corn and Jose has a remainder.
Choice B is best. Maria, the life tenant, owns the crop. A life tenant has the right to annual revenues from the property for the duration of the life estate, with no duty to account to the remainderman. The crop represents annual income or revenue. In some states, a ripe crop, which is ready to harvest, is considered personal property rather than real property. There is a split of authority on this point. But here the deed is delivered in August, so the unmatured crop is part of the real estate, and ownership is not retained by Farmer Jones. There is no cotenancy because the deed evinces the clear intent to give Maria a life estate and Jose a remainder.
Paul owned two adjoining lots 35 years ago. He built a house and a detached garage on each lot. Paul built one driveway between the two houses leading to the two garages. Paul lived in one house and rented out the second house. Twenty-five years ago, Paul sold the rented house to Tim. The property line between the two lots was placed so that the driveway was located exclusively on Paul’s land until it reached the back of the houses, where it widened giving access to both garages. The deed did not mention the driveway, but Paul orally assured Tim he could continue using the driveway to get to his garage. This year, Tim sold his home to Mary by a deed transferring the lot “with all easements, rights and appurtenances.” A week after moving into her new home, Mary went out of town for the weekend. She left her car in the driveway, thereby preventing Paul from driving his car out the driveway. As a consequence, Paul missed church services that Sunday morning. When Mary came home on Monday, Paul told her she could not use his driveway anymore. Mary brings suit for the right to continue using the driveway.
(a)Is Mary claiming an easement appurtenant or an easement in gross? If the easement is appurtenant, does Mary own the dominant or servient estate?
(b)Is Mary seeking an affirmative or negative easement?
(a)Easement appurtenant. An argument could be made that, if Tim had an easement at all, it was an easement in gross. Paul told Tim that Tim could use the driveway to reach his garage. Paul may have meant Tim and not anyone else could use the driveway. This then would sound more like a revocable license. On the other hand, Paul may have meant Tim could use the driveway as long as Tim used the house, and whoever possessed it after Tim would have the right to use the driveway. That would be an easement appurtenant. This second scenario rings truer. Courts have a construction preference for easements appurtenant. So a court would likely find any easement here to be appurtenant. More importantly for Mary, she will have a right to use an easement appurtenant, whereas an easement in gross may be used by Tim but not by Mary. If the easement is appurtenant, Mary is claiming the dominant estate. Mary’s property is the one benefited by any easement. The benefited property is the dominant estate. Paul’s property, burdened by the easement, would be the servient estate.
(b)Because Mary wants to drive over Paul’s land, she seeks an affirmative easement.
(f)O conveys Blackacre “to A so long as he wishes to live on the property.”
(g)O conveys Blackacre “to A, provided that he lives on the property, but if he does not live there, then to O.”
(h)O conveys “to A for life, then if B graduates from law school, to B and her heirs so long as the land is used for a law office.” What interests do the parties have before B graduates from law school?
(i)What interest do the parties have when B graduates from law school?
(j)O conveys “to A so long as the property is used as a residence solely, provided, however, that if it is not so used, the estate shall cease and revert to B and his heirs, who have the right to repossess the property.” What estate does A have?
(f)This conveyance creates either a determinable life estate or a fee simple determinable in A. A court will try to ascertain the grantor’s intent based on the surrounding facts and circumstances. Today a court would tend to find that O transferred the fee simple determinable, the larger estate, to A, the grantee. If the grant is a fee simple determinable, O retains a possibility of reverter. If, on the other hand, the grant is a determinable life estate, O has a reversion, getting Blackacre back when A ceases living on Blackacre and no later than A’s death. If A’s interest is a fee simple determinable and A continued to live on the property up to his death, A has satisfied the condition and, as a result, at the moment of death he holds the property in fee simple absolute. Some good it will do him! This result will, however, benefit his heirs or devisees.
(g)A has a fee simple subject to a condition subsequent. The terms “provided” and “but if” are words denoting a fee simple subject to a condition subsequent. A does not own a fee simple subject to an executory limitation since Blackacre returns to O and does not vest in a third party. The drafting, however, is sloppy: Instead of “then to O,” better to have said that “O has the power to terminate A’s interest and the right to reenter the property.” This makes plain that the termination is not automatic and that O must do something, through either self-help or at law, to reenter. See 1 American Law of Property §4.6, at 417 (James Casner, ed., 1952). (h)A has a life estate, B has remainder (a contingent remainder since B must satisfy a contingency—graduating from law school—to take after A dies). Because it is possible A may die before B graduates, O, the grantor, retains a reversion. O also has a possibility of reverter if the land is not used for a law office, but as a matter of tradition, lawyers only mention the first interest O holds, the reversion.
(i)B’s remainder interest is no longer contingent. It is a vested remainder in fee simple determinable. Contingent and vested remainders are developed more fully in the next chapter. Since B’s remainder is vested, O’s reversion has ended, but O’s future interest, the possibility of reverter, remains. Thus A has a life estate, B has a vested remainder in fee simple determinable, and O has a possibility of reverter. See 1 American Law of Property §4.12, at 427 (James Casner, ed., 1952).
(j)A has a fee simple subject to an executory limitation. The language is ambiguous, indicating either a fee or a life estate. The preference for the larger estate permits this language to be construed as a fee simple subject to an executory limitation. B has an executory interest (in the next chapter we learn that B has a shifting executory interest).
Hogg purchased 35 acres intending to raise between 6,000 and 7,000 hogs on the land. Township’s zoning ordinance allowed large livestock operations in the zone when Hogg purchased the property. Hogg hired a designer to design the hog farm and its manure pits, secured financing, obtained bids for costs of building, entered into contracts with suppliers, purchased insurance, graded the site (made the ground level), applied for a well permit, constructed manure pits and a sewage system, built an access road, and installed a culvert. Nine months after Hogg bought the 35 acres, Township amended its zoning ordinance to exclude commercial livestock operations in the zone. May Hogg continue constructing and then operating his hog farm as a nonconforming use? Restated, does Hogg have a vested right to conduct the hog farm as a nonconforming use?
No. To qualify as a nonconforming use, the hog farm must be in operation at the time the ordinance was amended, or Hogg must have engaged in work of a substantial character toward the actual use of the land for the nonconforming purpose of operating a hog farm. He must have made tangible improvements, not just have a plan or contemplation. Most of Hogg’s activities were preliminary and were not physical changes to the property. The road, wells, and sewer system could be used for other permitted businesses. The only improvements specifically built for a hog farm were the manure pits, but in a close call they were insubstantial in comparison to the construction of a sizeable hog farm. In addition, nothing in the facts indicates Hogg applied for or received a building permit. This too may be important. Vested rights are often a conclusion the municipality should be estopped from prohibiting a use it authorized by a building permit.
Judy and Carrie own adjoining lots. They enter into an agreement that their lots would be restricted to single-family residential use only and that no mobile homes would be located on either lot. The agreement provided, “The covenants will run with the land.” The agreement was properly recorded in the local land records. Judy subsequently sold her lot to Tai, the deed restricting the lot to single-family residential use only and prohibiting mobile homes on the lot. Carrie sold her lot to Curtis, the deed containing the same two restrictions. Curtis bulldozed all the trees on the lot and moved six mobile homes onto his lot. When Curtis cut the trees and situated the mobile homes, the value of Tai’s lot dropped $10,000. Tai sues Curtis seeking $10,000 in damages and an injunction requiring Curtis to remove the six mobile homes. What result?
For Tai to collect damages, she must prove that a real covenant ran with the land so as to burden Curtis. Tai cannot do this. For a real covenant to run in this case, the original parties must intend the covenant to run, the covenant must touch and concern Curtis’s property for the burden to run, the covenant must touch and concern Tai’s land for the benefit to run, and there must be horizontal and vertical privity. The intent to run is easily satisfied because the agreement stipulated, “The covenants will run with the land.” Touch and concern also is met. The burden definitely touches and concerns Curtis’s land since the land can be used only for single-family residences and no mobile homes can be located on the lot. The benefit touches and concerns Tai’s land since the restriction on Curtis’s land makes Tai’s use of her property more enjoyable. A court, moreover, would conclude that the covenant is the kind that reasonable landowners would impress upon their property and intend to bind remote purchasers. Vertical privity of estate is met in both cases as Tai succeeded to Judy’s estate and Curtis succeeded to Carrie’s estate. However, the horizontal privity element fails in most jurisdictions. In most jurisdictions, horizontal privity will be found only when the covenant is included in a deed transferring the property, in a lease, or in a grant of easement. In this case, the lots were separately owned when Judy and Carrie agreed to restrict their two lots. Thus most courts will find there was no horizontal privity of estate. A few jurisdictions require horizontal privity only for the burden to run. Even in these jurisdictions, however, since Curtis was a remote purchaser, there must be horizontal privity for Curtis to be burdened, and as just noted, there was no horizontal privity in this case. Tai could only enforce the covenant as a real covenant if she lives in one of the few jurisdictions that has abolished the horizontal privity of estate requirement altogether. Tai would prevail in these jurisdictions since Curtis had notice of the restrictive covenant (it was in his deed) and all other elements for a real covenant to run could be proved. All is not lost for Tai. While Tai’s claim for damages is doomed in most jurisdictions because she cannot prove the horizontal privity necessary to enforce a real covenant, she will prevail in her quest for injunctive relief. To get injunctive relief, Tai needs only to prove the elements for an equitable servitude. As discussed above, the intent to run and the touch and concern elements, common to real covenants and equitable servitudes, are met. Horizontal privity of estate is not necessary for an equitable servitude to bind remote purchasers. Since the first two elements can be proved, the equitable servitude will be enforced against Curtis if he had notice of the restriction. The notice could be actual, constructive, or inquiry notice. Whether or not Curtis had actual or inquiry notice, he definitely had constructive notice. The restriction was in his deed and in the original agreement, which was recorded. Curtis must remove the mobile homes. But Curtis does not have to plant new trees, since no covenant addressed trees on the properties: Mere loss in value does not entitle a landowner to damages or injunctive relief unless the defendant was under a legal or contractual duty not to cause the injury.
Cletus owns two adjoining lots (Lots 1 and 2) in a subdivision. The rear part of Lot 2 (but not Lot 1) borders on a pond. Cletus conveys Lot 2 to Lana, the deed to Lana stating in pertinent part, “The grantor reserves the right to cross the land hereby conveyed for access to the pond.” One year later, Lana sells Lot 2 to Lucky. Six months after that sale, Cletus sells Lot 1 to Cornelia. Cornelia’s best argument that she has the right to walk across Lot 2 to the pond is:
A.The deed provision created an appurtenant easement.
B.The deed provision created an easement in gross.
C.The deed provision created a license.
D.The deed provision created a real covenant.
E.Lucky cannot prove that Cornelia’s walking across Lot 2 will cause actual harm.
Go with A. If the deed created an appurtenant easement, the benefited estate is Lot 1 and the burdened estate is Lot 2. The conveyance of Lot 1 to Cornelia automatically transferred ownership of any appurtenant easement to Cornelia as grantee of the fee estate. If the deed provision created an easement in gross, probably it’s nontransferable, and in any event there’s no evidence that Cletus intended to transfer an easement in gross to Cornelia. A license would not help Cornelia because typically it is nontransferable and revocable at the option of the licensor (Lana or Lucky as Lana’s successor). The deed provision would not create a real covenant because the terms allow an entry onto Lot 2, something a real covenant or equitable servitude cannot do. E is “out in right field.” Unless the deed provision created a property right now owned by Cornelia, she will be trespassing if she crosses Lot 2 to get to the pond, and a trespass results whether or not there is actual harm to the property.
Paul owned two adjoining lots 35 years ago. He built a house and a detached garage on each lot. Paul built one driveway between the two houses leading to the two garages. Paul lived in one house and rented out the second house. Twenty-five years ago, Paul sold the rented house to Tim. The property line between the two lots was placed so that the driveway was located exclusively on Paul’s land until it reached the back of the houses, where it widened giving access to both garages. The deed did not mention the driveway, but Paul orally assured Tim he could continue using the driveway to get to his garage. This year, Tim sold his home to Mary by a deed transferring the lot “with all easements, rights and appurtenances.” A week after moving into her new home, Mary went out of town for the weekend. She left her car in the driveway, thereby preventing Paul from driving his car out the driveway. As a consequence, Paul missed church services that Sunday morning. When Mary came home on Monday, Paul told her she could not use his driveway anymore. Mary brings suit for the right to continue using the driveway.
(c)Does Mary have an express easement?
(d)Does Mary have an easement by estoppel?
(e)Does Mary have an easement implied from prior use?
(f)Does Mary have an easement implied by necessity?
(g)Does Mary have an easement by prescription (assume a ten-year prescriptive period)?
(c)Mary does not have an express easement. An express easement must be in writing to satisfy the Statute of Frauds. Paul did not deed Tim the easement. He merely told Tim that Tim could use the driveway to reach his garage. The deed from Tim to Mary could not create an easement over Paul’s land.
(d)Mary probably does not have an easement by estoppel. Paul made no statement to Mary before she bought the house or otherwise gave her any indication she might be able to drive over his property. She therefore cannot gain an easement by estoppel based on anything Paul said to her. On the other hand, Mary succeeds to any easement that Tim had in the property. If Tim had an easement by estoppel, Mary also owns the easement. Tim’s claim is based on Paul’s oral statement that Tim could use Paul’s driveway. It appears Paul made the statement after Tim decided to buy the home. If so, then Tim could not have changed his position based on the statement and thus he does not qualify for the easement by estoppel. If, however, Mary can show that Tim purchased the house only because of Paul’s assurances that Tim could use the driveway, she should get her easement by estoppel. Paul made a representation to persuade Tim to commit to the house purchase. He should have known that Tim would rely on the representation in buying the home, and that it was an important factor in Tim’s decision to buy the home. Finally, Tim bought the home as a consequence of relying on the representation. While some courts might find an easement by estoppel here, the surrounding circumstances seem to indicate Tim was going to buy the house, and Paul’s assurances were just a neighborly act. From the facts, it appears that if Tim was relying on the assertion, and the assertion was as critical as Mary needs a court to believe, Tim should have fleshed out the matter more at the time, asking his attorney how best to document his rights. Not doing so, Tim should be denied the easement rather than having Paul lose his right to exclude others from his property. The facts are even less supportive of Tim and Mary because they do not indicate that Tim expended any money on the easement.
(e)Mary probably does not have an easement implied from prior use even though the elements may seem satisfied. Paul was the common owner. The use was in place at the time the commonly owned parcel was divided in two, it was visible at the time of severance, and it seems reasonably necessary for the enjoyment of the dominant estate. However, the fact that Paul told Tim that Tim could drive over Paul’s driveway to reach his garage is evidence that Tim used the driveway pursuant to Paul’s permission. The conversation indicates the parties did not overlook the issue. The opposite seems true. The two presumably believed the right to use the driveway was not part of the transfer to Tim. If so, the presumed intent underlying the easement implied from prior use theory disappears. Tim did not receive an easement implied from prior use, only a revocable license. Since Tim did not get an easement from prior use, neither will Mary.
(f)Mary does not have an easement implied by necessity. Her property borders a street. She does not need another way of egress and ingress.
(g)Mary does not have an easement by prescription. She has been on the property less than a month. The only way she could prevail is by tacking Tim’s use. Tim did use the driveway long enough to satisfy most states’ statutory period. His use was open, continuous, and exclusive, but not hostile or under a claim of right. The facts indicate Tim used the driveway with Paul’s permission. A person who begins using property pursuant to a landowner’s permission cannot gain an easement by prescription, no matter how long the use. This type of easement may hinge on Tim’s state of mind: Did he begin using the easement because he thought he had a right, an easement in legal parlance, to continued use as the new owner of his house, or was he grateful for the grantor/neighbor’s kind gesture? A court’s conclusion as to Tim’s state of mind affects dramatically the outcome.
O conveys “to A and his bodily heirs, but if A dies without issue, to B and his heirs.” A has a daughter, C, who predeceases A. This may occur, for example, if a farmer, Orville, dies, leaving his farm to his eldest son, “Arnold, and his bodily heirs, but if Arnold dies without issue, to Bart and his heirs.” What estates are created?
“A and his bodily heirs” is interpreted to mean the same as “A and the heirs of his body.” Hence A has a fee tail (or fee simple conditional), where it is recognized. Since A has a child, C, who predeceased him, it matters how the jurisdiction handles the failure of issue. If the jurisdiction is one of the few that retains the fee tail, the land would belong to A as long as he lived, then to A’s eldest child as long as he lived, then to his eldest child as long as he lived, until A’s bloodline ended, at which point the land would go to B (or his heirs). In the Example, A’s line died with him and his daughter, C; so on A’s death B would get a fee simple absolute estate in the farm. Jurisdictions that have abolished the fee simple conditional and the fee tail have interpreted language that historically created one of the two estates in two different ways. The majority of jurisdictions treat the “and the heirs of his body” and “and his bodily heirs” language as words of limitation indicating a fee simple absolute—i.e., just like “and his heirs.” In those jurisdictions, A received a fee simple absolute, and B got nothing. In other jurisdictions A has a life estate and if he dies with children living at his death (or grandchildren if no surviving child) the child (or grandchild) takes the land in fee simple absolute. If A dies without issue, the property passes to B in fee simple absolute. Which interpretation applies makes a big difference in the Example since A died without a surviving child (C predeceased A). In the first instance A owns the farm in fee simple absolute and can devise it in his will or it passes to his heirs (siblings, cousins, etc.). In the second instance, A’s interest in the farm ends on A’s death and B owns the farm in fee simple absolute.
Developer planned to build a condominium project consisting of 14 buildings and 108 units on unzoned property. He completed his market research and financial studies, developed drainage, grading, landscaping and sewer plans, platted the tract, and cleared a portion of the land. He applied for and received a building permit for one building containing five units. He began constructing piers and foundations for the building. A month later Town enacted a comprehensive zoning ordinance placing Developer’s property in a single-family residential district. Town told Developer it would not issue building permits for the remaining buildings and would revoke the building permit for the first building.
(a)Does Developer have a vested right to finish all 14 buildings and 108 units?
(b)Does Developer have a vested right to finish the one building with five units for which Town already issued a building permit, or may Town revoke the building permit?
(a)Developer does not have a vested right to build the 14 buildings and 108 units even though he had a good-faith belief he would be able to construct them. He had no building permits for thirteen of the buildings and had expended no money to substantially develop the last 13 buildings and 103 units. The commencement of construction on the first building pursuant to a building permit did not give Developer the vested right to complete the entire project. (b)Developer can finish that first building and five units as a nonconforming use if he wishes. He acted in good faith, he received a building permit, and he installed piers and foundations that substantially advanced the nonconforming purpose. Town will be estopped from revoking the building permit.
Terry owned two adjoining lots. Terry’s house was situated on Lot 1, except his house encroached one foot onto Lot 2. Terry contracted to sell Lot 1 to Gerard. Gerard was concerned about the one-foot encroachment. To allay Gerard’s apprehension, at closing Terry executed a “Declaration of Restriction” providing that no improvements be made on Lot 2 within three yards of the house on Lot 1. Terry was named grantor in the declaration, but the declaration named no grantee. Also at the closing, Terry executed and delivered a deed conveying Lot 1 to Gerard, the deed being made subject to and including all rights accruing from all recorded conditions, restrictions, covenants, and easements affecting the property conveyed. Both documents were recorded in the local land records that same day. Two years later, Terry sold Lot 2 to Kim, the deed being made subject to “easements, covenants, and conditions of record.” Kim contracted with House Builders to construct a house on her lot. When Gerard saw the house was going to be built within one yard of his home, he brought a lawsuit to enjoin the construction as a violation of the three-yard setback in the Declaration of Restriction. Was the Declaration of Restriction a real covenant running with the land?
The Declaration of Restriction is a real covenant binding Kim. To enforce a real covenant, Gerard must prove the following: The original parties intended the covenant would run with the land, the covenant touched and concerned the burdened land, both horizontal and vertical privity exist, and the covenant is in a writing satisfying the Statute of Frauds. Horizontal privity is at issue here. Kim would argue that the covenant was not included in the deed and so Terry attempted to burden his own land, which cannot constitute horizontal privity. But horizontal privity is established when a restriction is created in connection with the conveyance of an estate in land. There is no requirement the restriction be incorporated into the deed itself. The Declaration of Restriction was executed in connection with the overall conveyance of Lot 1 to Gerard. That was enough. Gerard prevails. Gerard more successfully may succeed in an action to enforce an equitable servitude since Kim at minimum had constructive notice of the restriction.
Laura, a real estate developer, just bought a small farm consisting of 30 acres at the edge of suburbia, planning to develop a residential subdivision. She gave the seller a valid, enforceable real covenant promising that each lot would have a minimum size of two acres. At the time of her purchase, the zoning permitted this use with a two-acre minimum lot size, but two months thereafter the county amended the zoning to reduce the minimum lot size to only one acre. What effect did the rezoning by the county have on the real covenant?
A.Laura can build on one-acre lots because private arrangements cannot stand in the way of the police power.
B.Laura can build on one-acre lots because this will not create a nuisance.
C.Laura can build on one-acre lots, but the government may have to compensate the seller for the loss of benefit of the real covenant if the seller can prove damages.
D.Laura must observe the two-acre minimum because the real covenant was created before the zoning amendment passed.
E.Laura must observe the two-acre minimum because both the real covenant and the zoning ordinance are valid restrictions on the use of her tract.
The only correct statement of the relationship between covenants and zoning is E. When a tract of land is subject to both a private covenant (a real covenant or an equitable servitude) and zoning covering the same subject matter, the owner generally must comply with both the covenant and the zoning regulation. This means that when one of the regulations is more restrictive than the other, the owner must comply with the most restrictive regulation, whether it is the covenant or the zoning provision. It does not matter whether the covenant or the zoning was first in time.
Paul owned two adjoining lots 35 years ago. He built a house and a detached garage on each lot. Paul built one driveway between the two houses leading to the two garages. Paul lived in one house and rented out the second house. Twenty-five years ago, Paul sold the rented house to Tim. The property line between the two lots was placed so that the driveway was located exclusively on Paul’s land until it reached the back of the houses, where it widened giving access to both garages. The deed did not mention the driveway, but Paul orally assured Tim he could continue using the driveway to get to his garage. This year, Tim sold his home to Mary by a deed transferring the lot “with all easements, rights and appurtenances.” A week after moving into her new home, Mary went out of town for the weekend. She left her car in the driveway, thereby preventing Paul from driving his car out the driveway. As a consequence, Paul missed church services that Sunday morning. When Mary came home on Monday, Paul told her she could not use his driveway anymore. Mary brings suit for the right to continue using the driveway.
(h)Assume no garage and no driveway existed when Paul sold to Tim 25 years ago. A year later Paul and Tim agreed to build a driveway, and shared the cost for a contractor to build the driveway in the same location stipulated in the main facts. Paul and Tim contracted with separate builders to build their detached garages at the back of their respective lots. Would these facts change your answer to any of the questions?
(h)Mary’s chances increase tremendously under these facts. First, the facts increase the likelihood that a court will find an easement by prescription. Tim spent money to build the driveway and built his garage, indicating that Tim believed that he could use the driveway for a long time. Tim’s use, therefore, was hostile and under claim of right based on his reasonable belief that the agreement was that he would have a long continuing use. Tim’s claim is hostile even if the word “easement” was never spoken between Paul and Tim. Once Tim used the driveway for ten years, he had an easement by prescription. Since Tim’s easement is appurtenant, he could transfer it to Mary. Tim also may have had an easement by estoppel. Paul and Tim discussed jointly building a driveway for their common use. Paul must have known (in fact Paul encouraged Tim) that Tim would expend money to pay for the driveway and to build a garage based on Tim’s right to continue using the driveway. Tim in fact spent the money. Tim’s actions indicate that he reasonably believed that Paul would not attempt to revoke Tim’s right to use the driveway. Thus it seems that Mary has an easement by estoppel. The new facts lessen the chance that Mary will prevail in an easement implied from prior use action, however, since the use was not in place when the property was severed. The change in facts will not affect any discussion of an easement by necessity.
O conveys Blackacre “to Larry for life, remainder to Freda and her heirs.” Larry the life tenant insures Blackacre against fire for $100,000. Improvements on Blackacre are worth $75,000. They burn to the ground. Larry claims the proceeds of the policy. Freda appears and claims the bulk of the proceeds. Can she do so successfully?
Some courts hold that a life tenant has no duty to insure the property. If Larry has no duty under a state’s law to insure the improvements, then the proceeds should be wholly his, and some courts have so held. There may be insurance law questions as to what Larry can insure, but Freda as the holder of the remainder has no standing to raise those questions. (The moral here is for the present and future interest holders to get together and purchase insurance, making sure that everyone’s interest is adequately covered—or for the person creating the tenancy to impose the duty to insure on the tenant.) See 1 American Law of Property §2.23, at 159 (James Casner, ed., 1952).
Concrete Company has been operating a ready-mix concrete plant in a municipality for 20 years. Last year the municipal council, after concluding concrete plants’ noise, vibrations, heavy truck traffic, and dust were incompatible with life inside a modern city, amended its zoning ordinance to no longer permit concrete plants to operate within its limits. The municipal council rezoned the property on which the plant operated to R-4, Multi-family Residential, to provide space for high-density, low-income housing. Under the ordinance, the city council could set reasonable amortization periods for nonconforming uses on a property-by-property basis, considering the height of structures used; the nature of the use; the surrounding land uses; the character of the neighborhood; the cost of the property and of any improvements; any benefit to the public if the use continued or ended; the burden on the property owner who is required to terminate the nonconforming use; and the length of time the use has existed. After a public hearing, the council decided the concrete plant be given a two-year amortization period, at the conclusion of which the plant was to cease to operate within the municipality. A major factor in the council’s decision was the company’s having used the concrete plant for nearly 20 years, finding that 20 years was long enough for the plant’s owner to recoup its investment. Concrete Company challenges its exclusion from all locations in the municipality.
(a)Does the council have a legitimate state interest in excluding concrete plants from the municipality?
(b)Is the zoning ordinance rationally related to the promotion of any claimed legitimate state interest?
(c)Was the two-year amortization period constitutional as applied to the concrete plant?
(a)The council’s decision is entitled to a presumption of validity and constitutionality and the council can offer several legitimate state interests. Any goal that promotes the health, safety, morals, or general welfare qualifies. One legitimate goal was to remove the source of dust and other air pollution associated with concrete plants. Similarly, trucks to and from the plant may cause dangerous traffic conditions.
(b)Zoning is the means to achieve the state’s legitimate ends. Rezoning to prohibit the operation of the concrete plant within the city is rationally related to the legitimate state interest in its citizens’ health (cleaner air) and safety (safer traffic conditions).
(c)The two-year amortization period is constitutional as applied to Concrete Company. To prevail, Concrete Company must show the two-year amortization period is not rationally related to the promotion of any legitimate state interest or that the ordinance will deprive Minnesota Concrete of all practical use of its property. As discussed above, the two-year amortization period is directly related to the promotion of the health, safety, and general welfare of the town’s citizens. Although a possibility exists Concrete Company might show that no practical use of the property would remain or that it could not earn a reasonable return on the investment, it appears the land is usable for other purposes. In fact, the municipality anticipates the land will be used for multi-family residential (apartments, condominiums, etc.) purposes. The fact that the only use Concrete Company would consider making would be the prohibited ready-mix concrete plant is irrelevant to whether some practical use could be made of the property, and would be relevant to the issue of return on investment only if the company could not sell the land to someone else. The council calculated the amortization period for Concrete Company based on the plant’s original cost and the useful life on the day the company acquired the plant (rather than on the fair market value on the effective date of the rezoning). While a city can choose to base the amortization period based on the improvement’s fair market value as of the rezoning’s effective date, the Constitution requires only that the owner have an opportunity to recoup its original investment. Under the facts, Concrete Company had more than recouped its original investment over the past 20 years. Hence it needed no more time to recoup its investment. The two-year amortization period gave Concrete Company adequate time to locate and purchase new land outside the municipality, and to construct a new cement plant on the land. Under these facts, the two-year amortization period was reasonable.
Guy owned 400 acres. He sold 150 of the acres to Chad. The sales contract, but not the deed, stated, “Guy covenants he will offer Chad a right of first refusal for all or part of the remaining 250 acres owned by Guy when Guy receives an offer from someone to buy the land.” Chad filed a memorandum of the right of first refusal in the local deed records. Guy received an offer from Holt Investments for the remaining 250 acres. Guy notified Chad of the offer. Chad declined to exercise the right of first refusal. Five years later, Holt Investments sold 100 acres (out of the 250 acres) to Timber Paper Co. Six months later, Chad filed a suit alleging Holt Investments’ sale to Timber Paper Co. was made in violation of his right of first refusal. Who prevails?
Holt Investments and Timber Paper Co. prevail. The vertical privity is met. So is the notice element. Holt Investments had constructive notice of the right of first refusal during the activity surrounding its own purchase of the 250 acres. Not so clear is the intent to run element. The sales contract provided for a right of first refusal if Guy received on offer to sell. Nothing in the contract indicated the right of first refusal was to bind any person other than Guy, the original promisor. It contained no language to indicate the parties intended the right of first refusal would bind a subsequent owner. The court, therefore, would find that the original parties had not intended the covenant to run with the land in the first place.
Eleven years ago Ophelia bought Blackacre, a ten-acre tract of land, in fee simple from Sam. In the deed of conveyance, Sam reserved a right-of-way easement, not to exceed 20 feet in width, across the western boundary of Blackacre. Sam retained ownership of a tract, named Northacre, lying immediately to the north of Blackacre. The purpose of the easement was to allow Sam to have access from Northacre to a public highway that ran along the southern boundary of Blackacre. At the time of Ophelia’s acquisition Blackacre was unimproved, largely covered with pine trees and brush. Eight years ago Crooker, purporting to be Ophelia, sold Blackacre to Paula for valuable consideration, conveying by a warranty deed. Paula immediately took possession of the eastern part of Blackacre, clearing a small area where she built a cabin which she occupied as her principal residence. Over the years Paula cut timber from the eastern half of Blackacre, and she left the western half alone. Five years ago Ophelia died, devising a life estate to Paul and a remainder to Quigley. Sam has never cut trees from the right-of-way location or used that easement in any way. Sam has lived on Northacre at all relevant times and has access to Northacre by means of a county road that adjoins Northacre near its northeast corner. In the jurisdiction where the property is located, the statutory period for adverse possession is ten years unless the claimant has color of title, in which case it is seven years. Assuming that Paula has met the general requirements for adverse possession other than duration, she probably has obtained the following title:
A.Title in fee simple to all of Blackacre, subject to Sam’s easement.
B.Title in fee simple to all of Blackacre, free of Sam’s easement.
C.Title to a life estate in all of Blackacre, subject to Sam’s easement.
D.Title to a life estate in all of Blackacre, free of Sam’s easement.
E.Title in fee simple to the eastern part of Blackacre actually occupied by Paula.
F.Title to a life estate in the eastern part of Blackacre actually occupied by Paula.
G.Title to nothing, because Paula has been in possession for less than ten years.
The first choice, A, is it. I tried to wear you out by giving you a total of seven choices — well beyond the normal allotment. But I expect you know enough about taking multiple-choice exams to be sure to read all the choices, even if you feel certain that A is the right answer as soon as you read it. You may read something in the latter responses that changes your mind, despite your previous certainty.
This is on the long side for a multiple-choice question, by my taste. It’s the type of question I’d usually draft for a short-to-medium-length essay question. You have to deal with four variables or issues: (1) Does the easement run with the land to bind Paula? (2) Should Paula get adverse possession title to all of Blackacre or just the part that she has actually taken and used? (3) Is Paula claiming under the seven-year statute or the ten-year statute? (4) Does Ophelia’s devise of Blackacre, dividing ownership between a life estate and a remainder, affect Paula’s title by adverse possession?
The answers are (1) yes, (2) all of Blackacre, (3) the seven-year statute, and (4) no. A few details: The easement is appurtenant, so it generally binds Ophelia’s successors. The fact that Sam has not used it and that he has alternative access for Northacre is not relevant. This is not sufficient to demonstrate that Sam has abandoned ownership of the easement. The deed Paula obtained from Crooker is color of title, which does two things. She gains title to all of Blackacre under the doctrine of constructive adverse possession, and she may use the seven-year limitations period rather than the normal ten-year period. Ophelia’s will doesn’t matter. This severance of title took place after Paula began her adverse possession, so the running of the period extinguishes both the life estate and the remainder.