Real Estate Case Problems
1. You are a paralegal in a law firm representing a property owner. The property owner is negotiating to purchase a driveway easement from a neighbor. You have been asked to prepare the easement agreement. What information do you need to prepare the easement?
2. You are a paralegal in a law firm that represents a real estate developer. The developer has obtained a necessary driveway easement to her property. After the easement was obtained, it was discovered that the property over which the driveway is located had been earlier pledged as security for a debt to the First Bank and Trust. It also has been discovered that the First Bank and Trust debt is in default and that the First Bank and Trust is having a public auction of the property to pay the debt. Should the real estate developer be concerned? If so, what steps can be taken to protect the developer?
3. Aaron owns two lots of real property, Lot 1 and Lot 2. Lot 1 is located next to a public right-of-way, but Lot 2 is landlocked from the public lot right-of-way by Lot 1. Aaron conveys Lot 2 to Bob with a deed, making no reference to any rights-of-way or any other kinds of easement benefiting Lot 2. Bob then sells Lot 2 to Carol. Carol claims against Aaron that she has a right-of- way easement over Lot 1 for the purposes of providing access from the public street to Lot 2. Does Carol have a valid claim?
4. David has a driveway easement over Carol’s property. By the terms of the easement, the driveway easement expired six months ago. David continues to use the driveway easement. Can Carol sue David for trespass?
5. A farmer friend of Bill’s gives him oral permission to fish in a pond located on his farm. Bill fishes in the pond for several years. The farmer sells the farm. The new owner sees Bill fishing and asks him to leave. The new owner tells Bill that he cannot fish in the pond. Does Bill have some legal right to continue fishing in the pond? If Bill does try to fish in the pond, can the new owner sue him for trespass? Explain your answers.
1. Preparing the Easement Agreement
To prepare the driveway easement agreement, you need the following information:
- Parties Involved: Names and addresses of the property owner and the neighbor granting the easement.
- Property Description: A legal description of both properties involved, particularly the area of the easement.
- Purpose of the Easement: Clearly define the intended use of the easement (e.g., access for vehicles).
- Duration: Specify whether the easement is permanent or temporary.
- Maintenance Responsibilities: Clarify who is responsible for maintenance and repair of the easement area.
- Access Details: Include specifics on access routes, if applicable.
- Compensation: Terms of payment for the easement, if any.
- Restrictions: Any restrictions on the use of the easement or surrounding property.
- Signatures: Space for the parties to sign and date the agreement, along with notarization requirements.
2. Developer’s Concerns with the Easement
Yes, the real estate developer should be concerned. The discovery of the First Bank and Trust debt and impending auction poses risks to the easement’s validity and use. Here are steps the developer can take:
- Title Search: Conduct a thorough title search to understand the implications of the debt and any existing liens.
- Contact the Bank: Reach out to First Bank and Trust to clarify the status of the debt and the auction process.
- Legal Counsel: Consult with a real estate attorney to explore options for asserting rights to the easement.
- Protective Measures: Consider filing a notice of the easement in the public record to establish priority over subsequent claims.
- Potential Purchase: Explore the possibility of purchasing the property at auction to secure control over the easement.
3. Carol’s Claim to a Right-of-Way
Carol may have a valid claim for a right-of-way easement over Lot 1 based on necessity. Even though the deed from Aaron to Bob did not reference an easement, the fact that Lot 2 is landlocked typically gives rise to an implied easement by necessity. The key factors include:
- Access Requirement: Lot 2 requires access to the public right-of-way.
- Previous Ownership: Since Aaron owned both lots, the necessity can be inferred.
Therefore, Carol could argue that an easement by necessity exists, allowing her access through Lot 1.
4. Carol’s Potential Trespass Claim Against David
Yes, Carol can sue David for trespass. Since the easement expired six months ago, David no longer has a legal right to use the driveway. Continuing to use the property without permission constitutes trespassing. Carol can take legal action to stop David’s unauthorized use of her property.
5. Bill’s Fishing Rights and Potential Trespass
Bill does not have a legal right to continue fishing in the pond after the farmer sold the property. Oral permission does not create a legally enforceable right, especially after the property changed hands. The new owner is within their rights to revoke any prior permission. If Bill tries to fish in the pond after being told to leave, the new owner can sue him for trespass, as Bill would be entering the property without permission. The new owner has the right to control access to their property, including the pond.