Michael Staib

EASEMENT PRACTICE PROBLEM

The first question here concerns Mary’s respective rights regarding Mary’s right to use the dirt road.

Easement is a (1) non-possessory right/interest (2) to use or restrict from using (3) the real property of another. An easement requires (1) dominant estate holder, grantee who receives benefit from using easement, and (2) servient estate holder, grantor of the easement.The first issue is whether Bill permitted Mary the right to an easement. The first element of easement is a non-possessory right. The facts indicate Mary requested an “interest” that permitted “use” of “the existing dirt road on across” Bill’s farm to access state highway. This request establishes a non-possessory interest in property by Mary because the dirt road constitutes part of Bill’s possession, which “ran across his property.” Thus, Mary satisfies the first element of an easement.

The second element is use or restriction from use. The facts provide that Bill permitted Mary’s use of property, specifically, by, “validly executing a deed that described her right to use” his dirt road. Hence, Mary satisfies the second element in establishing an affirmative right to use Bill’s property.

The third element is property of another. As mentioned, the facts presume Bill’s ownership, as the dirt road extended across his farm. He also possessed the “farm in fee simple,” which further reveals his ownership, which assumes possibly “all the bundle of sticks.” Indeed, Mary’s requested use satisfies the element of seeking to use another’s property, specifically, Bill’s dirt road across his farm.

Therefore, Mary’s request of “non-possessory interest” to use Bil’s property, overwhelmingly suggests she, as the “dominant estate holder,” which Bill, servient estate holder, granted, obtained an “affirmative easement.” Thus, Mary most likely establishes an easement right. Additionally, Mary may establish a potential appurtenant easement right because her request to “use property,” offers “physical use” connected with property. An appurtenant easement benefits the holder in physical use. Mary’s purchase of an “adjoining farm” reveals physical connection to Bill’s farm sufficient to establish an appurtenant easement. Likewise, her intent to “physically cross” Bill’s dirt road in accessing the state highway most strongly supports an appurtenant easement.

However, the facts also indicate that Mary “never recorded her deed.” Nevertheless, an appurtenant easement may “pass automatically” to Mary, the dominant estate holder, regardless of whether mentioned in conveyance.

Furthermore, though an easement generally requires express writing by grantor, the law may imply an easement based on parties’ intentions. Thus, Bill’s later confirmation to Sam that he neglected indicating Mary’s easement right in his deed for Sam, most strongly supports intent. Thus, Bill’s admission suffices to establish an implied easement by intent, further strengthening

the inference of Mary’s easement right. Moreover, Mary beyond her requested access showed intent to use this easement by Mary’s “use of the dirt road.” Therefore, the facts most strongly support an affirmative appurtenant easement right authorized by Bill for Mary. She may thus assert an easement right in using the property subsequently conveyed to Bill.

The second question concerns Sam’s rights with respect to Mary’s use of the Dirt road.A covenant or contract is the written exchange of property for money.

As for Sam, the facts presume he acquired possession in 2005 when “Bill sold him his farm for “$200,000,” “in fee” simply by “a General Warranty Deed.” Though the deed neglected mentioning, “the right that Bill previously deed to Mary” Bill’s contract “warranty,” for sale of property, establishes transferred ownership rights for Sam. This “general warranty deed” most likely establishes a “covenant” which offered Sam property in exchange for “$200,000.” This writing satisfies contractual obligations under the Statute of Frauds, which requires all land transactions in writing. When Bill sold Sam the property, Sam acquired ownership of Bill’s farm. Thus, Sam may establish an ownership right, in property by covenant.

Yet, the question remains whether Sam’s ownership right extinguishes Mary’s prior easement rights.

An appurtenant easement passes automatically with servient estate unless the new owner is a bona fide purchaser without notice. A bona-fide purchaser buys property in good-faith. As mentioned, Mary established an easement appurtenant with Bill, which initially, appeared to automatically pass when Bill granted it for Mary. However, the facts changed when Sam purchased Bill’s farm by a “General Warranty Deed” without prior notice of Mary’s appurtenant easement. Sam lacked such notice because “Bill failed to notify Sam of the prior Easement in his deed with Sam,” and possessed no constructive knowledge because Mary never recorded her deed. Likewise, Sam conducted “a title search” which unsurprisingly revealed no “encumbrance on the property,” since Mary never recorded her deed, which she allegedly, “lost.” His title search only strengthens the conclusion he had not actual or constructive notice to infer any pre-existing property rights. Thus, the facts fail to suggest any bad-faith by Sam. He simply purchased the property for reasonable value from Bill without knowledge or reason to know of any prior property rights. Therefore, Sam most reasonably constitutes a “bona-fide purchaser” who purchased the property in good-faith, without any knowledge or reason to know of Mary’s easement. Therefore, since Sam most likely constitutes a bona fide purchaser without notice of Mary’s prior appurtenant easement, which she never recorded, his property rights more likely than not extinguish Mary’s easement. The appurtenant easement here most likely fails to pass automatically because Sam, the new owner, and most likely a bona-fide purchaser, lacked notice of Mary’s easement.

Therefore, though Mary perhaps established a prior appurtenant easement right granted by Bill, Sam’s bona fide purchase of Bill’s farm most likely extinguished her rights with respect to using the dirt road. Mary failed to record the deed. Both Mary and Bill failed to reasonably notify Sam of Mary’s pre-existing easement right. In summation, the evidence most strongly favors Sam, bona-fide purchaser without notice, prevailing against Mary.