PRINCIPLE PROBLEM

Nelson Properties Inc., owned by Cyndi Carpenter, is a land development group

specializing in upscale housing. Its most recent project was Clearwater lake Estates, an
expensive private community developed around a man-made lake. One attraction of the
community was that, by purchasing a lot in the community, every homeowner would
have access to Clearwater Lake. The lake is an artificial lake created by Nelson
Properties and is owned by it.

Tom Goldigger, Dick Worksalot, and Harry Ambishus, three upwardly mobile
young bachelors who went to college with Cyndi, have a love of snorkeling. After
meeting with her old friends, Cyndi convinced Tom, Dick, and Harry to buy three
adjoining lots on the lake. All the deeds were recorded. The deed to all of the lots provide
that:

Grantee, and his immediate family only, shall enjoy unrestricted and free use of
the lake so long as Grantee refrains from all behavior which may disturb the
tranquil atmosphere of the community.
After three straight months of falling stock prices, Tom, Dick, and Harry were
forced to sell their homes. Anita Perks, Ruth Latterclymer, and Dyana Dinero, each
having a family with five actively swimming children, purchased the homes. The deeds
to Anita, Ruth, and Dyan, which were all promptly recorded, provided in pertinent part:

Grantor herby grants and conveys to Grantee the below described property, and
Grantee takes subject to all easements and encumbrances burning the said land

It was January when Anita, Ruth and Dyan moved into their new homes, so none
of them attempted to use the lake. The following month, Nelson properties sold the
remaining unsold lots, including the lake, to Wanahatchi Properties, Inc.
When summer came, Anita, Ruth and Dyan, and all fifteen of their children, followed the
rest of the property owners into the refreshing waters of the lake. Dyan even dusted off
her Jet ski and took it out on the lake, although she did not see any other motor vehicles
in use.
After one month of using the lake, Anita, Ruth, and Dyan were rudely asked by
Wannatchi to stop using the lake. Wannahatchi claims that the deeds from Nelson
Properties to Tom, Dick and Harry created non-assignable easements to use the lake and
therefore Anita, Ruth and Dyan had no right to use it.

Feeling cheated and angry, Anita, Ruth, and Dyan come to you for help. They each want
to continue using the lake in exactly the same way that they had in the past. How would
you advise them?













As W lawyers we are proving to the court that the 3 woen do not have the righ tot the
lake after purchasing the property from T, D and H
For W in that it is an EIG and that the conveyance was clear and unambiguous and best
case in Burkey v. Knoll which says you cant go outside the four corners of the document
an so is a personal easment in gross and would be non assignable to Anita, Ruth and
Dyan.
Evn if the court is ambigious, you must look at the circumstances surrounding the
conveyance and look at the relationship b/w the 3 men and cindi (the grantor),
considerationno aiddionatal consideration for the use of the lake. There may be an
unreasonable burden ont eh SE due to 600% increase in intensity (even if not kind).
Ultimately, W would not prevail, presumption is appurtenant if you can construe the
conveyance to be that and W can go outside the 4 cornsers of the document only was
meant to restrict access to strangers and not to family. look at intent and srrounding
Principle Prob WANNAHATCHI [Non-
assignable, in gross]
Anita, Ruth, & Diane (ARD) [assignable,appurtenant]
Rule: Unambiguous deed granted easement in gross.
- Traditional View: Not assignable if purely personal
- Super Traditional: Easements in gross arent
assignable
Notice: Became aware of swimming usage 6 months
laterfirst notice due to seasonal change
Specificity
- Original deeds to Tom, Dick, & Harry (TDH) stated
Grantee & his immediate family only, shall enjoy
ARD arent immediate family. No transfer.
Intent Intended to have limited use of the lake
Wording Deed doesnt specify assignability
Interest: Recreational, not commercial use
Avoid increased burden of intensity
Prior Use/History
- Cyndi & guys friends personal
- Raising children/home personal
Misuse: Man-made lake- Dont expect jetski bc not
tranquil Extinguish easement
oL:Timely objection to use of lake
Intent Silent on whether in gross or appurtenant
ROC for Appurtenant
- Presumption of appurtenancy Automatically transferable
- D estate attached
- Not just a mere personal interest
- Benefits ARD
Notice Recorded Constructive Notice
Intent Reasonably expected use of lake
Consideration: ARD are bona fide purchasers for value
- Why wouldnt the next buyer have access to use of the lake?
Specificity: Didnt name grantor by name
- Deed doesnt expressly state its not assignable
- Clear D & S estates
- If deemed not appurtenant Argue in gross & assignable
Wording: Legal terms. Could mean any grantee--not personal.
Interest: Low burden to allow swimming
Prior Use: Already been on property 6 months
Right to Enjoy: Swimming not unreasonable
Necessity: Other ways to restrict motor vehicles on lake
Policy: Free alienability of property
- Easement appurtenant raises value
- Best & most productive use of land House pairs w/ lake
circumstanves, the adverstimetn supports anita, ruth and dyan and easement appurtenant
is presumpted to pass with DE even if not mentioned int eh conveyance. jet ski is only
weakness in the ladies cass due to the its noisiness is a misuase and they would have to
stop that