OR Bar Property Law 2 — Questions and Answers
Question 1: An easement by implication arises when:
- The easement is expressly granted in a recorded deed
- A prior apparent use was reasonably necessary to the dominant estate when the land was divided (Correct answer)
- The claimant has openly used the land for 10 years without permission
- The owner records a plat map showing a right-of-way
Correct answer: A prior apparent use was reasonably necessary to the dominant estate when the land was divided
An easement by implication requires a prior apparent use that was reasonably necessary to the enjoyment of the dominant estate at the time of severance.
Question 2: An easement appurtenant differs from an easement in gross in that an easement appurtenant:
- Cannot be transferred without the express consent of the servient owner
- Benefits a particular person rather than a parcel of land
- Runs with the dominant estate and transfers automatically upon conveyance of that parcel (Correct answer)
- Terminates upon the sale of the servient estate
Correct answer: Runs with the dominant estate and transfers automatically upon conveyance of that parcel
An easement appurtenant benefits a dominant tenement and automatically passes with any transfer of that land, while an easement in gross benefits a person or entity, not a parcel.
Question 3: For a restrictive covenant to run with the land and bind successors at law, which element is NOT required?
- Intent that the burden run with the land
- Touch and concern the land
- Privity of estate between the original contracting parties
- The covenant must be notarized at the time of execution (Correct answer)
Correct answer: The covenant must be notarized at the time of execution
The traditional elements for a covenant to run at law are intent, touch and concern, and privity of estate; notarization is not one of the required elements.
Question 4: Which feature is MOST characteristic of a joint tenancy as opposed to a tenancy in common?
- Each co-tenant may freely devise their share by will
- Upon one co-tenant's death, the survivor(s) take the decedent's share automatically (Correct answer)
- Each co-tenant holds a distinct, separately transferable fractional interest
- A joint tenancy may only be created between spouses
Correct answer: Upon one co-tenant's death, the survivor(s) take the decedent's share automatically
The defining feature of joint tenancy is the right of survivorship — when one joint tenant dies, their interest passes automatically to the surviving joint tenant(s), bypassing probate.
Question 5: A tenant in common seeks to end co-ownership because the other co-tenant refuses to sell. The most appropriate remedy is:
- Unlawful detainer action
- Quiet title action
- Partition (Correct answer)
- Ejectment
Correct answer: Partition
Partition is the judicial remedy that dissolves concurrent ownership, either by physical division (partition in kind) or by a forced sale with proceeds divided among co-owners.
Question 6: A profit à prendre differs from a standard easement in that a profit:
- Cannot be created by an express written grant
- Entitles the holder to enter the land and remove natural resources from it (Correct answer)
- Exclusively benefits an adjoining parcel of land
- Automatically terminates when the servient estate is sold
Correct answer: Entitles the holder to enter the land and remove natural resources from it
A profit grants the right to enter another's land and remove something from it — such as timber, minerals, or game — whereas an easement merely grants the right to use the land without removing resources.
Question 7: A landowner orally tells a neighbor, 'You may use my driveway whenever you need.' Without more, this creates:
- An easement appurtenant benefiting the neighbor's parcel
- An easement by necessity implied from the circumstances
- A license, which is revocable at will (Correct answer)
- A covenant running with the neighbor's land
Correct answer: A license, which is revocable at will
Oral permission to use land creates a revocable license, not an easement; an easement requires a writing to satisfy the Statute of Frauds and is not freely revocable.
OR Bar Property Law 2
An easement by implication arises when: