(5) Property: Property Use

Question 1

Definition:

Easement

Answer 1

Easement is a right to use someone else’s land. Easements are either in gross or appurtenant.

Question 2

Definition:

Servient Estate

Easement

Answer 2

The land that is subject to the easement.

Question 3

Definition:

Dominant Estate

Easement

Answer 3

The land that benefits from an easement on the servient estate.

Question 4

Definition:

Negative Easements

Easement

Answer 4

A negative easement is a restrictive covenant and prevents the owner from using the land in a particular way to benefit the land of the holder of the easement.

Ex. A conveys a lot adjacent to theirs to b with the agreement that B will not build a structure to obstruct the light and air of A’s land.

Question 5

Rule:

Negative Easement

Easement

Answer 5

A negative easement is created by an (1) express writing; (2) signed by the grantor. Negative easements are only recognized in relation to their restriction of light, air, support, or stream water from an artificial flow.

Question 6

Definition & Rule:

Easement in Gross

Easement

Answer 6

Definition: Easement in gross benefits a specific person and does not attach to the land.

Rule: Easement in gross doors not pass to subsequent landowners.

Question 7

Definition & Rule:

Easement Appurtenant

Easement

Answer 7

Definition: Easement appurtenant attach to the land and benefit any owners enjoyment and use of the land.

Rule: Easement appurtenant pass to subsequent landowners so long as the new owner has notice which may be (a) actual; (b) constructive (easement is recorded in previous conveyances); OR (c) inquiry (a reasonable person would have inquired about the existence of any easement based on the facts of the property).

Question 8

Are Easements presumed in gross or appurteanant?

Easement

Answer 8

Easements are presumed to be appurtenant unless clear facts show otherwise.

Question 9

How to create an Easement?

Overview

Answer 9

An easement may be created by (1) an express grant; (2) prescription; (3) implication; OR (4) necessity.

Question 10

Easement by Grant

Easement - Creation

Answer 10

An easement by grant is an express agreement by the grantor allowing the easement (1) in writing; (2) signed by the grantor; (3) satisfies the SOF (if the duration if over a year); (4) identifies the land and parties involved; AND (5) indicates the grantor’s intent to convey the easement.

Question 11

Easement by Prescriptive

Easement - Creation

Answer 11

An easement by prescription is created when the possessor’s use of the land is (1) open and notorious; (2) continuous; (3) hostile (without the owners permission); AND (4) for the statutory period.

Question 12

Easement by Necessity

Easement - Creation

Answer 12

An easement by necessity is created if (1) the original piece of land owned by one owner is subdivided; AND (2) the access the easement provides is essential to the use of the property because there is no other ingress or egress available (i.e., no viable road to access property).

Question 13

Easement by Implication

Easement - Creation

Answer 13

An easement by implication is established when (1) a single tract of land is divided by a common owner; (2) a pre-existing use by the grantor that benefits the land is established prior to the division of the land; (3) the use is continuous and apparent indicating that the use was meant to be permanent; AND (4) such use is reasonably necessary for the owner’s use and enjoyment of the land conveyed (the benefitted property) – this element is met is the owner would be forced to spend substantial money or labor to provide a substitute for the easement.

Question 14

Overall Rule:

Scope of Easement

Easement

Answer 14

An easement holder cannot exceed the scope of the easement. The scope of an easement depends on how the easement was created AND on the intent of the original parties. Reasonable changes in manner, frequency or intensity of use are permitted but the holder cannot change the scope as to impose an unreasonable burden on the servient land.

Question 15

Scope of Easement by Easement Type

Easement

Answer 15

a. By Grant: An express easement by grant is limited to what was agreed to by the parties.
b. By Prescriptive: A prescriptive easement is limited in scope to the actual usage during the period required to create the easement.
c. By Necessity: An easement by necessity is limited to remedying the necessity at issue.
d. By Implication (prior use): An easement implied by prior use is limited in scope to the prior use.

Question 16

Duty to Maintain

Easement

Answer 16

The holder of the easement has the duty to maintain the easement and may be liable for damages caused to the servient estate for negligent or intentional violations of this duty, but is not strictly liable for any damages suffered by the servient estate from the use of the easement.

Question 17

How to Terminate an Easement

Easement

Answer 17

1. Merger
2. Abandonment + Intent to not return
3. Prescription
4. Estoppel
5. Termination of Necessity
6. Involuntary Destruction of Servient Estate
7. Condemnation of Servient Estate
8. Written Release

Question 18

Merger

Easement - Termination

Answer 18

Holder of the easement obtains title to the servient estate – doesn’t merge if obtains less than fee absolute title.

Question 19

Abandonment + Intent to Not Return

Easement - Termination

Answer 19

Easement holder demonstrates through physical actions an intent to never use the easement again.

Question 20

Prescription

Easement - Termination

Answer 20

If an easement holder fails to protect his easement against a trespasser for the statutory period, then his easement right may be terminated by prescription.

Question 21

Estoppel

Easement - Termination

Answer 21

When the servient estate owner reasonably relies on or materially changes his position due to the easement holder’s assurance that the easement will no longer be enforced.

Question 22

Written Release

Easement - Termination

Answer 22

The writing must expressly release the easement right and comply with the SOF.

Question 23

Definition & Proper Remedy:

Covenants

Answer 23

A real covenant is an interest in land that obligates the holder to either do something (affirmative covenant) or refrain from doing something to the land. And the remedy is damages.

Question 24

Benefit Enforcement

Covenants

Answer 24

To enforce the benefit of a covenant there must be (1) a writing that satisfies the SOF; (2) intent that the covenant runs with the land; (3) vertical privity (when the successor holds the entire interest held by the predecessor); AND (4) the covenant must touch and concern the land (make the land more useful or valuable to the benefitted party).

Question 25

Burden Enforcement

Covenants

Answer 25

To enforce the burden of a covenant, all of the requirements for a benefit covenant must be met plus (1) horizontal privity between the original parties (exists when the two parties shared some interest in the land independent of the covenant); AND (2) the new owner must have notice of the covenant. Notice may be (a) actual; (b) constructive (covenant recorded in previous conveyances); OR (c) by inquiry (an inspection of the land would reveal the covenant).

Question 26

Definition & Applicable Remedy:

Equitable Servitude

Coventant

Answer 26

Equitable servitudes are covenants that equity will enforce if the burdened estate had notice of the covenant and the remedy is injunctive relief.

Question 27

Benefit Enforcement

Covenant - Equitable Servitude

Answer 27

To enforce the benefit of an equitable servitude there must be (1) a writing that satisfies the SOF; (2) intent for the servitude to be enforceable; AND (3) the servitude must touch and concern the land (make the land more useful or valuable to the benefitted party).

Question 28

Burden Enforcement

Covenant - Equitable Servitude

Answer 28

To enforce the burden of an equitable servitude all of the benefit enforcement requirements must be met plus the new owner must have notice of the servitude and notice may be (a) actual; (b) constructive (the servitude is recorded in previous conveyances); OR (c) by inquiry (an inspection of the land would reveal the servitude).

Question 29

Rule:

Common Scheme or Plan Doctrine

Answer 29

A court will imply reciprocal restrictive covenants on parcels of land in a subdivision sold by a developer only if (1) the developer had a common scheme or plan (that all parcels of land would be subject to the restriction at the time the parcel in the subdivision was sold; AND (2) the defendant land owner had actual, inquiry or record notice of the restriction.
* Inquiry notice – there was a common scheme or plan and a general restriction was obvious from looking at the subdivision
* Record Notice – constructive notice through documents publicly recorded.

Question 30

What type of property uses does Common Scheme or Plan Doctrine apply to?

Answer 30

Applies to Covenants and Equitable Servitudes.

Question 31

Definition / Scope

License

Answer 31

A license is a privilege to use another’s land in a particular way. The licensee must act within the scope of the license.

Question 32

How to revoke a License?

Answer 32

A license may be revoked at any time by the licensor. A licensor may be estopped from revoking the license if it is coupled with an interest or detrimentally relied upon because then the license is irrevocable.

Question 33

How to create a License?

Answer 33

Licenses are created when one tried to create an easements orally or written but it fail the SOF. A license doesnt need to be in writing.

Ex. A has a life estate with the remainder to B. B has an irrevocable license to enter the land and inspect for waste during A’s life tenancy because of his future interest in the land.

Question 34

Profit

Answer 34

A profit is a right to enter another’s land and remove specific natural resources. Profits are created similarly to easements (minus by necessity).

Question 35

Types:

Water Rights

Answer 35

1. Riparian Rule (Eastern)
2. Prior Appropriation Rule (Western)

Question 36

Riparian Rule (Eastern)

Water Rights

Answer 36

Water rights belongs to those who own the land bordering the water shed. These rights cannot be sold or transferred separately from the adjoining land.

Question 37

Prior Appropriation Rule (Western)

Answer 37

First in time, first in right. The first person to make beneficial use of the water has the rights to the water and subsequent users must not infringe on the rights of prior users. These rights can be sold or transferred separately from the adjoining land.

Question 38

Overall Rule

Support Rights

Support Rights

Answer 38

A landowner has a right to have the land supported in its natural state.

Question 39

Overall Rule:

Lateral Support

Support Rights

Answer 39

Overall Rule: A landowner has a right to lateral support from adjoining land.

1. Natural State Rule
2. Improved State Rule

Question 40

Lateral Support - Natural State Rule

Support Rights

Answer 40

When a landowner excavates on their land, they are strictly liable for any damage caused to the adjoining land if the land is undeveloped and the excavation causes damage.

Question 41

Lateral Support - Improved State Rule

Support Rights

Answer 41

When a landowner excavates on their land and the adjoining land is developed, the landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state regardless of the improvements.

Question 42

Definiton & Rule:

Subjacent Support

Support Rights

Answer 42

(Below the surface support)
This right arises when the landowner grants the right to mine on their land. The owner of the mining rights are strictly liable for any failure to support the land or any building on the land at the time the rights were conveyed. The landowner is liable only for damage to any improvements build after the conveyance of the rights.

Question 43

Public Nuisance

Answer 43

A public nuisance is (1) an unreasonable interference; (2) with the health, safety, or property rights; (3) of the community. The injured party must show that they suffered a differed kind of harm than what was suffered by the rest of the community.

Question 44

Private Nuisance

Answer 44

A private nuisance is (1) substantial and unreasonable interference; (2) with a person’s use or enjoyment of their property.
*Substantial – a nuisance that is offensive, inconvenient or annoying to a reasonable person in the community.
*Unreasonable – the injury outweighs the usefulness of the defendants’

Question 45

Remedies

Nuisance

Answer 45

A plaintiff will be entitled to damages or injunctive relief to prevent the nuisance if damages are insufficient.

Question 46

Previous Non-Conforming Use

Zoning

Answer 46

The doctrine of previous non-confirming use allows a landowner to continue to use his land in violation of a later enacted zoning law. As long as the use was lawful prior to the regulation and is continuous.

Question 47

Definition & Rule:

Variances

Zoning

Answer 47

Definition: A variance is an exception to a zoning ordinance. Two types of variances exist: (1) use variances; and (2) an area variance.

Rule: An application for a variance will be granted if (1) the property owner shows they will suffer hardship because of the ordinance; AND (2) the variance will not damage or harm the public welfare.

Question 48

Takings

Answer 48

A government must either compensate owner for an unconstitutional taking or terminate regulation and pay owner for damages occurred while it was in effect.