跳到主要内容

试写2024年7月加州论文第二题

· 阅读需 5 分钟

Executory Interest

Under the terms of Olivia's conveyance of Lot B to Barry, the clause states: "If at any time, Barry, his heirs, successors or assigns shall use the premises for any purpose other than as a personal residence, said Lot B shall immediately vest in fee simple in Zach or his surviving descendants." This language gives Barry a fee simple determinable, while granting Zach an executory interest. This means that if the land is used for anything other than a personal residence, the ownership automatically transfers to Zach. After Zach's death, his granddaughter, as his surviving descendant, inherits this executory interest, assuming that this jurisdiction has abolished the common law Rule Against Perpetuities (RAP).

Rule Against Perpetuities

According to the traditional Rule Against Perpetuities (RAP), a future interest must vest, if at all, no later than 21 years after the death of a relevant life at the time the interest was created. In this case, the executory interest that Zach holds could potentially violate the RAP because the condition - using Lot B for "any purpose other than as a personal residence" - might occur beyond 21 years after the death of Zach or any other relevant person who was alive at the time of the interest's creation. Therefore, Zach's executory interest might be invalid under the RAP.

If the executory interest is deemed invalid due to the RAP, the executory interest would be replaced by Oliver’s reversionary interest, as reversions are not subject to the RAP. This means that if the condition is breached, the property would revert back to Oliver's estate (or her successors) rather than vesting in Zach's descendants.

Wait and See Rule

Few jurisdictions directly abolish the RAP; instead, many adopt the "wait and see" rule. This rule assesses whether the interest actually vests within the period defined by the RAP—21 years after the death of a relevant life in being. Although Zach passed away 60 years ago, Barry is still alive. Therefore, under this jurisdiction's specific "wait and see" rule, it is possible that the executory interest does not violate the RAP, as Barry's continued survival means the vesting period might still fall within allowable limits.

In summary, if the RAP remains unmodified in the jurisdiction, Darla may have nothing, and Lot B goes to Simon. If the jurisdiction has abolished the RAP or adopted a "wait and see" rule, Darla might have held an executory interest in Lot B before Developer began constructing an office building. Once the condition was breached by the non-residential use, her interest converted into a fee simple. This fee simple, however, is subject to Simon's easement, which will be discussed later.

Easement by Implication

An easement by implication is established when: (1) A single tract of land is divided by a common owner; (2) There is a preexisting use by the grantor benefiting the land prior to the division; and (3) The use is reasonably necessary for the enjoyment of the dominant parcel. The existing Use must be apparent and continuous at the time the tract is divided.

Here, Olivia originally owned both Lot A and Lot B, fulfilling the single tract division requirement. The dirt road existed and was apparent and visible before the division, constituting a preexisting use benefiting Lot A. The road is necessary for Simon's access to the highway, as no alternative exists without significant expense. Simon likely has an easement by implication over the dirt road on Lot B.

Easement by Necessity

An easement by necessity is established when: (1) A single tract of land is divided by a common owner; and (2) The access provided by the easement is absolutely necessary for the use of the property. That easement terminates when the necessity ceases.

In this case, by dividing the original tract and conveying Lot B to Barry, Olivia inadvertently deprived Lot A of direct access to the public highway. This division creates an absolute necessity because there was no other access to the highway. An easement by necessity would be created and remain unless and until an alternative means of access is established.

Easement by Prescription

Even if an easement by implication or by necessity was not created when the land was divided, Simon can still acquire an easement by prescription. An easement by prescription is established when the possessor’s use of the land is: (1) open and notorious; (2) continuous; (3) hostile; and (4) for the statutory period, which is typically between 7 to 20 years.

Here, Simon has regularly used the dirt road for 30 years, satisfying the open, continuous and the statutory duration requirements. If he did not originally acquire an easement by implication or necessity, then his use of the land was without Barry's permission, meeting the requirement of hostility. Therefore, Simon can claim an easement by prescription over the dirt road on Lot B.

Merger

In conclusion, Simon has obtained an easement over the dirt road by implication, necessity, or at least by prescription. This easement remains intact regardless of the sale of Lot B to Developer or if transferred to Darla through her executory interest. However, if the Rule Against Perpetuities applies and causes the executory interest to fail, resulting in a reversion to Olivia's estate and thereby uniting ownership of both Lot A and Lot B in Simon, the easement would merge and thus be extinguished.

(850-900 words)