Legal Memo Chloe Cameron 5th 10/25/22 The case provided describes a public park placed behind a cul de sac which contains 3 different houses/lots. The owners of lots 3 and 2 would consistently cross the lot of house 1 in order to reach the park since their original purchase and consequently have left a visible foot path. The original owner of lots 1 was aware of their actions and allowed them to continue the behavior , however there was no express easement created at any time. The owners of all involved lots each purchased their respective lots 13 years ago. Owners of lots 2 and 3 are not landlocked as there is another possible route to the park, however it is a lengthier travel time. Lots/houses 1 and 2 are sold, but in neither deed does it mention rights of access to lot 1 for the owners of lots 2 and 3. Shortly after purchasing lot 1, the new owner posts a “no trespassing” poster. When owners of lots 2 and 3 ask the owner of house 1 about the sign, they're told that they no longer have permission to cross lot 1 and respond that they hold an easement. The owners of lots 2 and 3, overall, are seeking an easement in order to allow them simpler access to the park. However, the owner of lot 1 wishes for them to cease use of his property and to stop trespassers. The case includes 3 original owners, Adam (lot 1), Bey (Lot 2), and Carlos (Lot 3) as well as Edwin, who Bey sold her lot to, and Davion, who Adam sold his lot to. The overall issues that concern the case are: 1. Whether or not Carlos, as the original and current owner of lot 3, has a right to use the property. 2. Does Edwin, new owner of lot 2, also have a right to use the footpath? In regards to easements, there are three different subcategories, but only one is applicable to the case. Easement by prescription contains 4 separate requirements which must all be satisfied in order to constitute this type of easement. These requirements are: actual possession, open and notorious, continuous, and hostile. In the case of Carlos, he does in fact meet the requirements for easement by prescription. The actual possession requirement asks for the party requesting the easement to utilize the property (or portion of the property) consistently as if they've already received permission. Carlos satisfied the above by repeatedly utilizing Adam's lot over the course of years for the same purpose. This is evident by the . Open and notorious asks for the party/ies seeking the easement to be a known presence on the subservient property. Because Carlos (along with Bey) would make friendly conversation and gestures with Adam, the original owner of the servient estate, Carlos was indeed open and notorious and thus, this requirement has been met. The hostile requirement says that the party seeking an easement is hostile, which in this sense, means without permission. Permission was never formally granted to Bey or Carlos by Adam or Davion. However, because the owner was aware and seemingly okay with the behavior, it is arguable that Carlos did, at one point, have permission. However it is also plausible that despite Adam knowing of Carlos’ behavior he was never actually okay with it. To further explain, the Texas state law defines consent as the expression of approval, whether express or apparent. So, due to Adams' awareness of the situation and his apparent friendliness during their interactions- while Carlos was on his property- I’ve determined that Carlos was indeed granted permission by Adam which would mean that Carlos does not satisfy the hostile requirement. Continuous requires for the easement seeking property owner to have used the property for a minimum of 10 years while still satisfying the other requirements. Carlos had been engaging in this behavior for 13 years prior to Davion's arrival which does satisfy this requirement. In the case of Edwin, The main focus of his argument is the continuous requirement of easement by prescription and if Bey held an easement in gross or easement appurtenant. As previously stated, an easement by prescription requires for the easement seeking party to have engaged in the behavior for a minimum of 10 years. Beecause Edwin had lived in the house and walked Adams property for only 2 weeks, he does not satisfy this requirement. There is also an argument to be made that the terms of Bey’s easement extended to Edwin when he purchased the house (easement appurtenant), however, based on the requirements for an easement by prescription it is also arguable that Bey, similarly to Carlos did not satisfy all requirements necessary to hold the easement and thus, it doesn’t exist. As established, hostility is required to constitute the easement. Like Carlos, Bey and Adam had multiple friendly exchanges while she was on his property, which would qualify as apparent permission. This being said, Edwin does not qualify for an easement. In conclusion Carlos does not hold an easement by prescription because he failed to satisfy all the requirements to hold said easement. Because Bey also did not hold an easement, which eliminates the possibility of an easement by appurtenant, and Edwin himself does not satisfy the requirements, Edwin also does not have an easement.
