2nd Assessment Flashcards
How to Terminate Easement - 7
1) Release
2) Merger
3) Express Limitation (Term Limit)
4) Non- Use
5) Frustration of Purpose / Impossibility
6) Adverse Possession / Use
7) Lack of Notice
Easement Termination - Release
-the holder of the easement expressly releases it. the release must be in writing, because it is subject to the statute of frauds.
Easement Termination - Merger
1) Appurtenant Easement is extinguished when the Dominant + Servient Estates unite into a single parcel
2) In Gross Easement terminates when ownership of the servient estate passes to the holder of the easement
3) Can’t have an easement in your own property
Easement Termination - Non- Use
1) Non Use
~AND~
2) Affirmative Acts - intent to relinquish the rights to the easement
Easement Termination - Frustration of Purpose / Impossibility
1) When the purpose for the easement becomes impossible
Ex:(a) To get water form a well - well runs dry
(b)Something changes in the nature of the land to make it impossible like a building going up
Easement Termination - Adverse Possession / Use
Conduct by the Servient Estate holder which is incompatible with the authorized right of use that continues for the statutory period;
e.g. the servient owner constructs a building across the easement and the building is a substantial permanent structure that obstruct s the use of the easement for the statutory period
Easement Termination - Lack of Notice
Servient Estate purchased w/o notice then the easement doesn’t run to the successor - it’s terminated
Easement Termination - Express Limitation (Term Limit)
There was a time limit / purpose set in the deed to end easement when reached
Easements w/o Express Limitation Run .. How long?
Forever
Easements that are Terminated are gone …How long?
Forever
Define Covenants
They are Negative Servitudes :
Restriction on land obligating or restricting you from doing something on your own land
2 Kinds of Covenants
Equitable Servitudes - enforced by injunction
Real Covenants - enforced w/ damages
Real Covenant ELEMENTS
i. Writing
ii. Notice
iii. Intent
iv. Touch + Concern
v. Privity
1) Vertical
2) Horizontal
Equitable Servitude ELEMENTS
i. Writing
ii. Notice
iii. Intent
iv. Touch + Concern
Covenants Elements Defined #1
i. Writing
ii. Notice
iii. Intent
i. Writing - Original must be in writing signed by grantor
ii. Notice - Owner of the Burdened Est knew or should have known that the parcel was restricted when he purchased that land - Actual, Constructive, Inquiry
iii. Intent - Original parties to the transaction must intend at the signing of the covenant that the covenant will run with the land
(a) Intent expressly stated - successors and assigns
(b) Can be implied by the circumstances
Covenants Elements Defined #2
iv. Touch and Concern
Must affect the use or value of the land itself
(1) Must affect the legal relations of the parties to the covenant as owners of the parcel of land, not just members of the community
a) Does it affect - use and enjoyment of land?
b) Physical aspects? Value?
c) Relationships between parties?
d) Connect to land? Provide advantage / disadvantage?
Privity - NOT required for ….???
Equitable Servitudes
Privity - IS Required for ….???
Real Covenants
Horizontal Privity defined
Regulates the relationship between the ORIGINAL PARTIES to the covenant
Horizontal Privity Created or Not ?
CREATED = at the time the property is sold or in a lease
NOT CREATED = by neighbors that are not part of a conveyance or by parties AFTER a sale
Vertical Privity defined
Regulates the relationship between the original parties and the successors to the covenant
Vertical Privity 2 Kinds
(1) STRICT - grantor did NOT RETAIN any future interests in the land
a) REQUIRED for BURDENED Side
(2) RELAXED - grantor retained some future interest in the land (landlord / tenant)
a) Either relaxed or strict allowed on the BENEFITTED Side
Running with the Land ….means / concerns ??
about SUCCESSORS +
their RIGHTS or RESTRICTIONS under the covenant / Otherwise it might be ONLY Privity of Contract
VIOLATIONS - Questions to ask..generally
Does it Violate Public Policy ?
Does the Activity Complained about violate the terms of the Covenant?
Does the Covenant Run w/ the Land?
Are there any Defenses available ?
Does the language specifically prohibit activity?
What activity is prohibited?
What is the intent + purpose of the covenant ?
Can an Equitable Servitude arise by Implication??
YES
Negative Reciprocal Servitudes (Equitable Servitudes) can be implied by a common scheme for development or residential subdivision or Common Interest Development (condos)
If developer subdivides land and some deeds contain Negative Covenants and some do not will the bindings be on ALL parcels ?
YES - PROVIDED:
1. At the time of sales in the subdivision, the developer had a plan that all parcels would be subject to the restriction
~AND~
2. The grantee had notice of the covenants in the deeds of the other parcels in the subdivision
Common Plan of Restriction + Notice
For Implied Reciprocal Negative Servitudes how can a
common scheme may be evidenced ??
- A recorded Plat
- General Pattern of Restrictions
- Oral Representations made to prospective buyers
Nahrstedt Test Rule for Reasonableness Factors
[This is used by someone trying to strike a valid covenant. It already runs to them and meets all the elements but they don’t like it & are trying to get rid of it]
Enforceable unless unreasonable
Unreasonable is
1) Unless wholly Arbitrary - does it bear any rational relationship to the preservation, protection, operation, or purpose of the affected land?
2) Violate a fundamental Public Policy
3) Burden far Outweighs any Benefit - harmful effects on land use so disproportionate to its benefits to the homeowners that is should not be enforced?
Termination of Covenants - 10 ways
- Laches
- Language
- Release
- Acquiescence
- Abandonment
- Unclean Hands
- Estoppel
- Merger
- Relative Hardship
- Changed Conditions
Termination of Covenants - Laches
- unreasonable undue delay in enforcing the restriction
Termination of Covenants - Release
- all parties (benefited + burdened) agree in writing to terminate the covenant
Termination of Covenants - Language
- there is an end of time period specified in the terms of the covenant
Termination of Covenants - Acquiescence
- owner of the benefitted estate tolerated previous violations by the owner of the burdened estate
Termination of Covenants - Abandonment / non use
- owner of the benefitted estate manifests an intent to give up entirely the benefit of the covenant; covenant is of no value to its beneficiary
Termination of Covenants - Unclean Hands
- beneficiary is in violation of the restriction she seeks to enforce
Termination of Covenants - Estoppel
- beneficiary manifests an intent not to enforce the covenant and the burdened party reasonably relies on this conduct to her detriment
Termination of Covenants - Merger
- the benefited and burdened estate come under the ownership of the same person
Termination of Covenants - Relative Hardship
- hardship to the owner of the burdened estate far outweighs the benefit to the dominant estate; the harm caused by enforcement is greater than the benefit of enforcement to the dominant estate
Termination of Covenants - Changed Conditions
Relief is granted only if the purpose of the servitude can no longer be accomplished;
the doctrine may also apply when substantial changes have occurred OUTSIDE the restricted subdivision that LIMIT THE BENEFIT of the covenant to the dominant estates
1) What is the benefit to the dominant estate?
2) What are the changed conditions? Have there been such radical changes to the neighborhood to cause the restrictions to OUTLIVE their USEFULNESS or PURPOSE ??
3) How do those changed conditions make it difficult to secure any benefits from the enforcement of the covenant?
[conditions have changed so drastically in the neighborhood restricted by the covenants that Enforcement will be of NO SUBSTANTIAL BENEFIT to the dominant estates]
