Full access allows:
- Solve all tests online without limits;
- Remove all advertisements on website;
- Adding questions to favorite list;
- Save learning progress;
- Save results of practice exams;
- Watching all wrong answered questions.
14. If the doctor's easement is NOT terminated, it will be because
In an appropriate foreclosure action as to Whiteacre, brought against the doctor and the neighbor, the bank seeks, among other things, to have the doctor's easement declared subordinate to the bank's mortgage, so that the easement will be terminated by completion of the foreclosure.
The recording act of the jurisdiction provides: «No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.»
A doctor owned Blackacre, which was improved with a dwelling. Her neighbor owned Whiteacre, an adjoining unimproved lot suitable for constructing a dwelling. The neighbor executed and delivered a deed granting to the doctor an easement over the westerly 15 feet of Whiteacre for convenient ingress and egress to a public street, although the doctor's lot did abut another public street. The doctor did not then record the neighbor's deed. After the doctor constructed and started using a driveway within the described 15-foot string in a clearly visible manner, the neighbor borrowed $10,000 cash from a bank and gave the bank a mortgage on Whiteacre. The mortgage was promptly and properly recorded. The doctor then recorded the neighbor's deed granting the easement. The neighbor subsequently defaulted on her loan payments to the bank.
Comments (0)
There are no comments at the moment. If you found an error or think question is incorrect, tell everyone about it
Only signed in users can write comments
Signin
At common law, in nearly all cases, priority was given to the grantee who received the property first. However, statutes known as recording acts require a grantee to make some sort of recording so as to give notice to the world that title to certain property has already been conveyed, to put subsequent grantees or purchasers on notice. Recording the deed is not essential to make it valid, but a grantee could lose out possession to a subsequent BFP. A subsequent BFP is one who gives valuable consideration and has no notice of the prior instrument.
The vast majority of states in the United States employ a system of recording legal instruments that affect the title of real estate as the exclusive means for publicly documenting land titles and interests. There are three major types of recording acts classified as notice, race-notice, and race statutes.
Under a notice statute, a subsequent BFP (i.e., a person who gives valuable consideration and has no notice of the prior instrument) prevails over a prior grantee who failed to record. The important fact under a notice statute is that the subsequent purchaser had no actual or constructive notice at the time of the conveyance.
Under a race-notice statute, a subsequent BFP is protected only if she records before the prior grantee. The operative words in a race-notice statute are «without notice» and «first recorded.»
Under a pure race statute, whoever records first wins. Actual notice is irrelevant.
D is correct. The recording statute identified in the facts is a notice act. To prevail under a notice act, a party must be a BFP who recorded his or her deed without notice of earlier purchasers. For the bank to be protected under the recording statute and prevail over the doctor, it must be able to establish that it recorded its interest without notice of her easement. Although the bank did not have record notice of the easement, since it had not yet been recorded when the mortgage was issued, the bank arguably had inquiry notice by virtue of the doctor's open and obvious use (and development) of the easement. Therefore, if the doctor prevails, it will be as a result of the bank's notice of the easement.
A is incorrect. Inquiry notice is legal notice presumed to exist when a person is in command of sufficient facts that would cause a reasonable person to make further inquiries. It is the bank's inquiry notice, not the order of recording, that is determinative under a notice act.
B is incorrect. An easement by necessity is created when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. When this happens, a right-of-way absolute necessity is created by implied grant over the lot with access to the public road or utility line. This is not an easement by necessity; the doctor's property is not «landlocked» because she has access to another road.
C is incorrect. An easement appurtenant is one that benefits the dominant estate and «runs with the land» and 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. Although this answer correctly states that the easement is appurtenant, the bank's claim is that its ownership right is superior to the doctor's easement right, not that the easement doesn't run with the doctor's land.