REAL PROPERTY ESSAY QUESTION #2 MODEL ANSWER In 1950, Al properly executed and delivered a quitclaim deed granting his neighbor, Betty, an "easement of way, thirty feet wide" along the southern boundary of Al's five acre residential parcel. Betty never recorded the deed. In 1951, Betty graded and graveled a twenty-foot wide road along the southern boundary of the five-acre parcel. Since then, Betty has used the road daily to reach her house and has maintained the road as needed. In 1955, Al conveyed his entire parcel to Cal by a properly executed and delivered quitclaim deed. The deed to Cal made no mention of any easement. Cal paid Al $15,000 for the conveyance. In September 1988, Cal and Dot signed the following contract concerning the five acre parcel: "Cal agrees to sell and Dot agrees to buy the following land [valid legal description]. Price, $90,000 cash, closing December 15, 1988. " On December 15, 1988, Dot paid Cal $90,000 cash, and Cal properly executed and delivered a warranty deed conveying the land to Dot. The deed contained no mention of the easement. Dot promptly recorded the deed. Betty has continued to use and maintain the road. In June 1989, Dot built a fence blocking the road to Betty's house. 1. What right, if any, does Betty have to continue to use the road? Discuss. 2. What rights, if any, does Dot have against Cal based on the contract, the deed, or both? Discuss. COPYRIGHT 2009 THE LAW PROFESSOR™

MODEL ANSWER I. BETTY'S RIGHT TO USE THE ROAD / EASEMENT. In 1950, Al properly executed and delivered a quitclaim deed granting his neighbor, Betty, an easement. TYPE OF EASEMENT. DOMINANT TENEMENT / EASEMENT APPURTENANT. The land that is benefitted by the easement is called the dominant tenement, while the land that is burdened by the easement is called the servient tenement. Here, Betty's parcel benefits from the easement, and thus is the dominant tenement. Al's property is burdened by the easement, and thus is the servient tenement. An easement appurtenant benefits the easement holder in their capacity as owner of the dominant tenement, and an easement in gross benefits the holder in a personal sense even if the holder of the benefit does not own the land. Here, Betty personally holds and benefits from use of the servient estate, and she therefore has an easement appurtenant. CREATION OF EASMENT. EXPRESS EASEMENT. We are told that Al properly executed a quitclaim deed granting Betty an easement of way. A property executed deed would create an express easement. Al's intent may be shown both through the deed itself, and through the fact that Al let Betty grade a road in 1951, and let her use it until he conveyed his land in 1955. Further, there is no implied easement here since Betty was not the original owner of both the dominant and servient estates, and there is no easement by necessity, since she had an express grant and there is no mention of whether Betty has alternate access to her property. SCOPE OF EASEMENT. An easement holder is entitled to do those things reasonably necessary for the full enjoyment of the easement. Betty enjoyed an easement of way, thirty feet wide along the southern boundary of Al's five acre residential parcel, that was reasonably COPYRIGHT 2009 THE LAW PROFESSOR™

contemplated at the time of conveyance. However, Betty graded and graveled only a twenty-foot wide road along the southern boundary of the five-acre parcel. Betty was under an obligation to maintain the servient property for the wear and tear caused by her use, and she appears to have fulfilled this obligation by grading and graveling the road. However, it is likely that the scope of the easement would be twenty feet wide, instead of thirty feet wide. TERMINATION OF EASMENT. An easement may be terminated through abandonment, destruction, merger, estoppel, severance, release or condemnation. None of the above has taken place. Instead, Betty continued to use the easement until Dot put up a fence blocking the road to Betty's house in 1989. RECORDING ACTS. CONVEYANCE TO CAL AND THEN TO DOT. In 1955, Al conveyed his entire parcel to Cal, through a quitclaim deed, which did not mention the easement. A quitclaim deed contains no title covenants. Through use of a quitclaim deed, the grantor does not warrant that they own the property or that title is good. This type of deed merely conveys whatever right, title, or interest the grantor may have in the land. Al paid $15K for the conveyance. Then, in 1988, Cal sold the parcel to Dot, for $90K. The conveyance between Cal and Dot was through a warranty deed, which also did not mention the easement. Dot recorded her deed. DOT BONA FIDE PURCHASER. Dot promptly recorded her deed in 1988. Under the traditional rule of first in time, first in right, she would be able to take her property without being subject to Betty's easement. However, modernly, most jurisdictions are either notice, or race notice jurisdictions, and Dot would have to show that she took as a bona fide purchaser for value without notice of the easement. Here, we are told that Dot paid $90K for a five acre parcel. In 1988, that would appear as a valid, and not nominal, consideration, and Dot would be considered a bona fide purchaser. Here, if Dot took as a bona fide purchaser for value COPYRIGHT 2009 THE LAW PROFESSOR™

without notice, she will take without being subject to the easement under a notice jurisdiction. Likewise, Dot will also take under a race-notice jurisdiction, if she took without notice, because she recorded before Betty. TAKING WITHOUT NOTICE OF EASEMENT. Actual Notice. Dot did not have actual notice of the easement. It was not mentioned in her warranty deed, nor was she told by Cal about the easement. Constructive Notice. Record /constructive notice means notice of any prior interest that would be revealed by an appropriate search of the public records affecting land title. A subsequent purchaser is charged with notice of such a prior interest even if he never actually conducts a title search. Betty did not record her easement. Therefore, even in a title search, Dot would not have discovered the easement. Inquiry Notice. Many jurisdictions also put a buyer under an obligation to conduct a reasonable inquiry concerning possible claims against the property. This duty requires a review of the premises for any persons in possession of the estate adverse to her claim. Here, Betty graded, maintained, and used her easement for more than thirty years. Additionally, the entire parcel consists of only five acres of land, which would be quite easy to examine for use. An examination of the property would have revealed a road to Betty's house, that ran partially across the servient tenement. Therefore, Dot was on inquiry notice. DOT. SHELTER RULE. Should Dot not qualify as a bona fide purchaser for value without notice, she may seek protection under the shelter rule. In other words, she may take shelter behind Cal, and if Cal was a bona fide purchaser without notice, she will be given the same label. Under the shelter rule, a grantee (here, Dot), who has received an interest in property from a bona fide purchaser for value (here, Cal), will also be protected as a bona fide COPYRIGHT 2009 THE LAW PROFESSOR™

purchaser, even if the grantee (here, Dot) would not qualify for this status. Here, Cal only paid $15K in consideration of the parcel in 1955. However, in a 1955 economy, $15K would be considered valuable consideration for a five acre parcel, and Cal would be considered a bona fide purchaser. However, Cal apparently took with the same inquiry notice as Dot. Cal easily could have found the graded road used by Betty. Therefore, since Cal took with inquiry notice, Dot may not seek shelter behind Cal. ADVERSE POSSESSION / PRESCRIPTIVE EASEMENT. Actual, Open, Continuous, Hostile, Possession for Statutory Period. Here, Betty had possession of the easement, in an open, actual, and continuous manner, for over thirty years, and thus would probably meet the statutory period for adverse use. The most important issue is whether she used the easement with hostility. Here, she had no hostility towards Al, but she may have had hostility towards Cal / Dot. The use of the easement is clearly hostile to the owner's title. Inasmuch as Betty used the easement open, notoriously and continuously, daily to reach her house, she may be said to also have a prescriptive easement. Dot would take only what Cal had to convey, and that is the five acre parcel with an easement. TRESPASS UPON EASEMENT / FENCE. A servient tenement owner may not do anything to obstruct the dominant tenement owner's rights. A servient tenement owner that blocks access to use of an easement, will be said to be trespassing upon the easement. The dominant tenement owner may have a cause of action for an injunction to stop the continuing trespass upon their easement. If Betty's easement is valid, then Dot's fence across the easement will be considered a trespass on the easement, and Betty may force Dot to tear down the fence, so that Betty may continue using the easement.

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LICENSE. A license is the privilege to enter the land of another for a specific purpose, and it may be revoked at the discretion of the person granting the license. If Dot had granted a license to Betty, Dot effectively revoked the license to use the road when Dot put up the fencing to prevent use of the road. II. DOT V. CAL ON THE LAND-SALE CONTRACT. IMPLIED MARKETABLITY OF TITLE. Cal and Dot entered into a valid land sale contract. There is an implied warranty in every land sale contract that seller will deliver marketable title to buyer. An easement will be considered to render title not marketable. After the closing date of Dec 15, 1988, the money for the property and the deed were exchanged, and all warranties merged into the deed. Instead of breach of contract, Dot will assert breach of covenants. WARRANTY DEED / COVENANTS. PRESENT. Present covenants are breached, if at all, at closing. RIGHT OF SEISIN. Present. Power to Convey. No Right to Convey Free and Clear. This covenant must be breached before delivery. Seisin means the grantor (Cal) had the power to convey the parcel. The problem here was that before conveyance, Betty had an easement. Cal breached this covenant because he did not have the power to convey the property free and clear. RIGHT TO CONVEY. This was not breached by Cal. Before delivery, Cal did have the right to convey the parcel. AGAINST ENCUMBRANCES. This was breached, because before delivery, the ranch was encumbered with Betty's easement, and Dot can seek damages for breach of this covenant. COPYRIGHT 2009 THE LAW PROFESSOR™

FUTURE. Where grantee is disturbed in their possession of the land. WARRANTY. Warranty promises that grantor will defend grantee should there be any lawful claims of title asserted by an third party. Dot will assert that Cal pay to defend Dot's title against Betty's claim to an easement. FURTHER ASSURANCES. Further assurances means that grantor promises to perform whatever future acts are reasonably necessary to perfect grantee’s title if it later turns out somehow to be imperfect, and Cal will be charged with further assurances. QUIET ENJOYMENT. Betty's claim of easement will beach the covenant of quiet enjoyment, which protects against a third party claim of title. REMEDY. Dot may seek damages against Cal for breach of covenants, for the purchase price and for interest.

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