2nd Assessment

Question 1

How to Terminate Easement - 7

Answer 1

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

Question 2

Easement Termination - Release

Answer 2

-the holder of the easement expressly releases it. the release must be in writing, because it is subject to the statute of frauds.

Question 3

Easement Termination - Merger

Answer 3

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

Question 4

Easement Termination - Non- Use

Answer 4

1) Non Use
~AND~
2) Affirmative Acts - intent to relinquish the rights to the easement

Question 5

Easement Termination - Frustration of Purpose / Impossibility

Answer 5

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

Question 6

Easement Termination - Adverse Possession / Use

Answer 6

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

Question 7

Easement Termination - Lack of Notice

Answer 7

Servient Estate purchased w/o notice then the easement doesn’t run to the successor - it’s terminated

Question 8

Easement Termination - Express Limitation (Term Limit)

Answer 8

There was a time limit / purpose set in the deed to end easement when reached

Question 9

Easements w/o Express Limitation Run .. How long?

Answer 9

Forever

Question 10

Easements that are Terminated are gone …How long?

Answer 10

Forever

Question 11

Define Covenants

Answer 11

They are Negative Servitudes :

Restriction on land obligating or restricting you from doing something on your own land

Question 12

2 Kinds of Covenants

Answer 12

Equitable Servitudes - enforced by injunction

Real Covenants - enforced w/ damages

Question 13

Real Covenant ELEMENTS

Answer 13

i. Writing
ii. Notice
iii. Intent
iv. Touch + Concern
v. Privity
1) Vertical
2) Horizontal

Question 14

Equitable Servitude ELEMENTS

Answer 14

i. Writing
ii. Notice
iii. Intent
iv. Touch + Concern

Question 15

Covenants Elements Defined #1

i. Writing
ii. Notice
iii. Intent

Answer 15

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

Question 16

Covenants Elements Defined #2

iv. Touch and Concern

Answer 16

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?

Question 17

Privity - NOT required for ….???

Answer 17

Equitable Servitudes

Question 18

Privity - IS Required for ….???

Answer 18

Real Covenants

Question 19

Horizontal Privity defined

Answer 19

Regulates the relationship between the ORIGINAL PARTIES to the covenant

Question 20

Horizontal Privity Created or Not ?

Answer 20

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

Question 21

Vertical Privity defined

Answer 21

Regulates the relationship between the original parties and the successors to the covenant

Question 22

Vertical Privity 2 Kinds

Answer 22

(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

Question 23

Running with the Land ….means / concerns ??

Answer 23

about SUCCESSORS +

their RIGHTS or RESTRICTIONS under the covenant / Otherwise it might be ONLY Privity of Contract

Question 24

VIOLATIONS - Questions to ask..generally

Answer 24

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 ?

Question 25

Can an Equitable Servitude arise by Implication??

Answer 25

YES
Negative Reciprocal Servitudes (Equitable Servitudes) can be implied by a common scheme for development or residential subdivision or Common Interest Development (condos)

Question 26

If developer subdivides land and some deeds contain Negative Covenants and some do not will the bindings be on ALL parcels ?

Answer 26

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

Question 27

For Implied Reciprocal Negative Servitudes how can a

common scheme may be evidenced ??

Answer 27

1. A recorded Plat
2. General Pattern of Restrictions
3. Oral Representations made to prospective buyers

Question 28

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]

Answer 28

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?

Question 29

Termination of Covenants - 10 ways

Answer 29

1. Laches
2. Language
3. Release
4. Acquiescence
5. Abandonment
6. Unclean Hands
7. Estoppel
8. Merger
9. Relative Hardship
10. Changed Conditions

Question 30

Termination of Covenants - Laches

Answer 30

• unreasonable undue delay in enforcing the restriction

Question 31

Termination of Covenants - Release

Answer 31

• all parties (benefited + burdened) agree in writing to terminate the covenant

Question 32

Termination of Covenants - Language

Answer 32

• there is an end of time period specified in the terms of the covenant

Question 33

Termination of Covenants - Acquiescence

Answer 33

• owner of the benefitted estate tolerated previous violations by the owner of the burdened estate

Question 34

Termination of Covenants - Abandonment / non use

Answer 34

• 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

Question 35

Termination of Covenants - Unclean Hands

Answer 35

• beneficiary is in violation of the restriction she seeks to enforce

Question 36

Termination of Covenants - Estoppel

Answer 36

• beneficiary manifests an intent not to enforce the covenant and the burdened party reasonably relies on this conduct to her detriment

Question 37

Termination of Covenants - Merger

Answer 37

• the benefited and burdened estate come under the ownership of the same person

Question 38

Termination of Covenants - Relative Hardship

Answer 38

• 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

Question 39

Termination of Covenants - Changed Conditions

Answer 39

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]