- Is the court likely to grant an injunction limiting the use of the driveway? Select one.
Answer: Yes, because the proposed use represents an unreasonable increase in the burden on the servient estate.
The correct answer is D. While an easement appurtenant serves every part of the dominant estate, the use must not unreasonably overburden the servient estate. Courts will look at the use contemplated by the original parties. A change in use from a single-family home to a 20-unit apartment building is a dramatic intensification. A court is likely to find that this substantially increases the burden on the servient estate beyond what was originally intended and will enjoin or limit the use.
- Is the neighbor likely to succeed in recovering damages from the company? Select one.
Answer: Yes, because all requirements for the burden of the covenant to run with the land to the company have been satisfied.
The correct answer is A. For the burden of a real covenant to run to a successor, there must be (1) a writing, (2) intent for the covenant to run, (3) the covenant must touch and concern the land, (4) horizontal and vertical privity, and (5) notice. All elements are met here: the covenant is in the deed (writing, notice); it binds successors (intent); maintaining a fence touches and concerns the land; the original deed established horizontal privity; and the company took the buyer's entire interest (vertical privity).
- Does the buyer of Lot 1 have a valid right to use the driveway easement? Select one.
Answer: No, because the easement was extinguished by the doctrine of merger when the woman acquired ownership of both lots.
The correct answer is C. The doctrine of merger extinguishes an easement when the dominant and servient estates come into the same ownership. A person cannot have an easement over their own land. Once extinguished by merger, the easement is not revived automatically by a subsequent severance of the parcels. To re-create the easement, it would have to be newly granted in the deed or meet the requirements for an implied easement, which is a different analysis.
- Is the covenant to pay the fee enforceable as a real covenant against the new owner? Select one.
Answer: No, because the benefit of the covenant is personal to the developer and does not touch and concern any land.
The correct answer is C. For a covenant to run with the land (either the burden or the benefit), it must "touch and concern" the land. This means it must affect the parties as landowners. A covenant that requires payment to an individual personally, not for the direct benefit or maintenance of the land or common areas, provides a benefit in gross that does not touch and concern any land. Therefore, the burden of this personal obligation will not run with the land to bind the new owner.
- What is the homeowner's strongest defense? Select one.
Answer: The HOA's selective enforcement and delay constitute a waiver or estoppel defense.
The correct answer is B. The defense of waiver or estoppel (sometimes referred to as laches) applies when a party with the right to enforce a covenant has failed to do so in a timely manner, and this failure suggests an intent to relinquish the right or induces reliance by others. By knowingly allowing the first fence to stand for over a decade, the HOA has arguably waived its right to object to an identical fence, at least without giving prior notice to all residents that enforcement will resume. Abandonment (A) is harder to prove as it generally requires widespread violations. Changed conditions (C) is inapplicable.
- What is the buyer's strongest argument for establishing a permanent right to use the path? Select one.
Answer: An easement by necessity was created at the time the original tract was severed, landlocking the western parcel.
The correct answer is C. An easement by necessity is created when an owner severs a tract of land, and the severance deprives one parcel of access to a public road. The elements are (1) common ownership of the parcels prior to severance, and (2) strict necessity for the easement at the time of severance. Both are met here. This is stronger than prescription (A) because the use was likely not adverse, and stronger than prior use (B) because there is no evidence the path existed before severance. A license (D) is generally revocable and does not create a permanent right.
- Is the co-tenant likely to succeed in his lawsuit? Select one.
Answer: No, because a right of first refusal is an interest in land that must be in writing to satisfy the Statute of Frauds.
The correct answer is C. A right of first refusal (a preemptive right) restricts the free transferability of property and is considered an interest in land. As such, it is subject to the Statute of Frauds and must be contained in a signed writing to be enforceable. Because the agreement between the friends was oral, it is unenforceable. While D raises a valid concern about fixed-price options being potential restraints on alienation, the Statute of Frauds is the more direct and dispositive reason for unenforceability in this case.
- What is the neighbor's most likely basis for success? Select one.
Answer: The farmer's promise and the neighbor's reliance created an irrevocable license.
The correct answer is C. While a license is generally a revocable privilege, it can become irrevocable under the doctrine of estoppel. An irrevocable license (or easement by estoppel) is created when a landowner grants a license, the licensee reasonably relies on the continuation of the license, and the licensee makes substantial expenditures in reliance on it. Here, the neighbor's $10,000 expenditure on a garage that relied on the path for access satisfies the requirements for an irrevocable license.
- The servitude being enforced is best characterized as which of the following? Select one.
Answer: A negative restrictive covenant.
The correct answer is C. The provision is a negative restrictive covenant, which is a promise to refrain from doing something on one's own land. It is negative because it prohibits an action (building to block a view). At common law, these were sometimes called negative easements, but they are now typically enforced as equitable servitudes or restrictive covenants. It is not affirmative (A) because it does not require the burdened owner to perform an act. It is not a profit (B) because it does not grant the right to take resources from the land. It is not an easement by necessity (D), which relates to access.
- In a jurisdiction with a pure notice recording statute, are the homeowners likely to succeed in their lawsuit? Select one.
Answer: Yes, because the uniform residential character of the subdivision put the buyer on inquiry notice of a common scheme of development.
The correct answer is D. The homeowners' best argument is that an implied reciprocal negative servitude exists. This equitable servitude arises from a common scheme of development. For the burden to run to a subsequent purchaser, the purchaser must have notice of the covenant. Here, even without actual notice or record notice (since the restriction was not in her deed), the uniform residential appearance of the other lots could be found to have put the buyer on inquiry notice, which is sufficient to enforce an equitable servitude.
- Who is the likely prevailing party in the quiet title action? Select one.
Answer: The farmer's successor, because the deed likely granted an easement that was terminated by abandonment when the railroad ceased operations and removed the tracks.
The correct answer is C. Courts often interpret deeds granting land to railroads "for a right-of-way" or "for railroad purposes" as conveying an easement, not a fee simple estate. An easement can be terminated by abandonment, which requires both non-use and an act demonstrating intent to permanently abandon. Ceasing operations and removing the tracks are strong evidence of such intent. Therefore, the easement was likely terminated, and the unburdened fee simple estate remains with the farmer's successor. While D is a possible interpretation, courts favor construing such grants as easements.
- Which of the following legal issues is the most important for you to research to determine the strength of your client's position? Select one.
Answer: The proper judicial interpretation of the term "trailer" and "mobile home" and whether a modern modular home falls within that definition.
The correct answer is B. The central dispute is one of interpretation: does the language of the 1972 covenant, which prohibits using trailers and mobile homes as residences, also apply to a modern, high-quality prefabricated modular home? This requires legal research into how courts interpret the scope of such restrictive covenants and whether they apply to building technologies that did not exist when the covenant was drafted. The other issues are less central. Waiver (A) would require evidence of non-enforcement against similar structures. Privity (C) is likely satisfied. Changed conditions (D) typically relates to the surrounding neighborhood, not technology.
- Is A likely to succeed in his action for damages against the tenant? Select one.
Answer: No, because a tenant holding a leasehold does not have the strict vertical privity required for the burden of a real covenant to run.
The correct answer is C. To recover money damages, A must enforce the promise as a real covenant. For the burden of a real covenant to run to a successor, there must be strict vertical privity, meaning the successor must hold the entire estate of the original promisor. A tenant holds a lesser estate (a leasehold) than the landlord (a fee simple). Therefore, strict vertical privity is lacking, and the burden of the real covenant does not run to the tenant. Note that A could likely get an injunction against the tenant under an equitable servitude theory, which does not require vertical privity, but the question asks about money damages.
- In an action to establish an easement, what is the buyer's strongest argument? Select one.
Answer: An easement by implication from prior use, because the use was apparent, continuous, and reasonably necessary.
The correct answer is B. An easement by implication from prior use is created when a common owner severs land, and (1) the prior use was apparent and continuous, and (2) the use is reasonably necessary for the enjoyment of the new parcel. Here, the paved driveway was clearly apparent and had been in continuous use. Its use is reasonably necessary for the guesthouse. This theory fits the facts better than necessity (A), which requires strict necessity, or prescription (C), which requires adverse use (the prior use was by the common owner, not adverse).
- Is the developer likely to succeed in enforcing the easement? Select one.
Answer: No, because the prior owner's act of building the permanent wall demonstrated an intent to abandon the easement.
The correct answer is C. An easement can be terminated by abandonment. Abandonment requires more than mere non-use; it requires (1) non-use plus (2) an affirmative act demonstrating a clear intent to permanently relinquish the easement. Building a permanent brick wall that physically prevents use of the easement is a classic example of such an act. This act permanently extinguished the easement, so it could not be revived by the developer.
- Is the homeowners' association likely to succeed? Select one.
Answer: Yes, because the Declaration of Covenants was in the new owner's chain of title, providing constructive notice.
The correct answer is A. For an equitable servitude to be enforceable against a subsequent purchaser, the purchaser must have notice of the restriction. Notice can be actual, inquiry, or constructive (also called record notice). A properly recorded Declaration of Covenants that is within the purchaser's chain of title provides constructive notice to all subsequent purchasers of lots in that subdivision, regardless of whether the covenant is mentioned in their specific deed. Therefore, the new owner is bound by the fence height restriction.
- Is the landowner likely to succeed in his lawsuit? Select one.
Answer: No, because the neighbor's continuous and hostile obstruction for the statutory period terminated the easement by prescription.
The correct answer is D. An easement can be terminated by prescription. This occurs when the owner of the servient estate interferes with the easement in a manner that is open, notorious, adverse, and continuous for the statutory period. By building a permanent wall and blocking access, the neighbor's use was adverse to the easement holder's rights. This adverse obstruction, maintained for longer than the 10-year statutory period, extinguished the easement. A mere protest letter (B) is not enough to stop the statutory clock. This is not abandonment (C) because that requires an act by the dominant owner.
- What is the lot owner's best defense against the enforcement of the covenant? Select one.
Answer: The character of the surrounding area has changed so fundamentally that the covenant's purpose can no longer be achieved.
The correct answer is C. The doctrine of changed conditions provides a defense to the enforcement of an equitable servitude when the character of the neighborhood has changed so drastically that the original purpose of the covenant is no longer achievable. The massive commercial development across the highway and the resulting impact on the border lots present a strong argument that the purpose of maintaining a strictly residential character has been frustrated for those lots. Zoning changes (A) do not terminate private covenants. The restraint on alienation argument (B) is incorrect. Abandonment (D) requires widespread violations within the subdivision, not just minor ones.
- What is your client's strongest argument to challenge the ARC's decision? Select one.
Answer: The ARC's decision is arbitrary and unreasonable because it is not based on any objective standard found in the covenants.
The correct answer is B. While courts generally uphold the authority of architectural review committees, their decisions must be reasonable and made in good faith. A denial based on a vague, subjective standard like "harmonious" or "established aesthetic," without reference to any specific guidelines in the covenants, is vulnerable to a challenge that it is arbitrary and capricious. The other options are incorrect. The covenant is a reasonable restraint on use, not alienation (A). Allowing different flowers is unlikely to constitute abandonment of architectural paint color controls (C). Privity (D) is not the central issue in challenging the exercise of an established committee's authority.
- Does the new owner of Parcel B have the right to use the right-of-way across Parcel A? Select one.
Answer: Yes, because the right-of-way provides access to a public road, which makes it an easement appurtenant that runs with the land.
The correct answer is A. There is a legal presumption that an easement is appurtenant rather than in gross. An easement is appurtenant if it benefits its owner in his physical use or enjoyment of his own land (the dominant tenement). An easement providing access to a parcel of land clearly benefits the use and enjoyment of that land. Therefore, the easement is appurtenant and runs with the land to successive owners of Parcel B. The lack of words like "heirs and assigns" (B) is no longer dispositive in modern law.
