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2. If the son loses, it will be because
The period of time to acquire rights by prescription in the jurisdiction is 10 years.
Last week the daughter commenced construction of a building on Lot 2 and blocked the driveway used by the son. The son has commenced an action against the daughter to restrain her from blocking the driveway from Main Street to the parking lot at the rear of Lot 1.
Until last week, the son continuously used the driveway over Lot 2 to the son's parking lot in the rear of Lot 1.
Eight years ago, the father conveyed Lot 2 to his daughter and, five years ago, the father conveyed Lot 1 to his son by a deed that recited «together with all the appurtenances.»
15 years ago, the father leased Lot 1 to his son for 15 years. The son has continuously occupied Lot 1 since that time. 13 years ago, without his father's permission, the son began to use a driveway on Lot 2 as a better access between Main Street and the parking lot than the alley.
A father owned two adjoining parcels known as Lot 1 and Lot 2. Both parcels fronted on Main Street and abutted a public alley in the rear. Lot 1 was improved with a commercial building that covered all of the Main Street frontage of Lot 1; there was a large parking lot on the rear of Lot 1 with access from the alley only.
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An easement appurtenant is one that benefits the dominant estate and «runs with the land» and so generally transfers automatically when the dominant estate is transferred. An appurtenant easement allows property owners to access land that is only accessible through a neighbor's land.
The basic ways of creating an easement are by express grant, implication, and prescription. An easement by express grant is one that is recorded and signed by the grantor and must comply with all the formalities of a deed. An easement by implication is created by operation of law rather than a written instrument. There are three types of easement by implication: (i) an intended easement based on a use that existed when the dominant and servient estates were severed; (ii) an easement implied from a recorded subdivision plan; and (iii) an easement by necessity. An easement by prescription is analogous to acquiring property by adverse possession. To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period.
A is correct. This question requires you to understand not only types of easements but also the ways to create an easement. The driveway between Lots 1 and 2 is an easement appurtenant — one that benefits a specific piece of land. But the creation of an easement appurtenant requires two pieces of property: a dominant estate and a servient one.
In this case, the facts state that the father owned all of Lots 1 and 2 until he sold Lot 2 to his daughter eight years ago. Therefore, there has only been an easement appurtenant in existence for eight years (because there was no dominant or servant estate prior to that time). Although the son will argue that an easement was created by prescription as a result of his adverse, continuous, visible and unpermitted use of the driveway, that use only involved one piece of property until eight years ago. Because the time period to acquire rights by prescription in this jurisdiction is 10 years, the son's use would have to continue for two more years before it would create an easement appurtenant by prescription.
B is incorrect. While the question of whether a property has access to a road is an element to determining if an easement by necessity is created by implication, there is not an easement by necessity in these facts.
C is incorrect. While it is correct that use is only one element of adverse possession, this fact alone does not explain why the son loses.
D is incorrect. As explained above, an easement appurtenant allows property owners to access land that is only accessible through a neighbor's property and generally transfers automatically. However, this easement did not exist until after the daughter bought the land, so it cannot be the reason the son loses.