5) Rights in Land Flashcards
ways to dictate how land is to be used (kinds)
1) covenant
2) equitable servitude
3) implied reciprocal servitude
ways to make affirmative use of the land (kinds)
1) easement
2) profit
3) license
covenant vs equitable servitude
covenant –> damage
equitable servitude –> injunction
implied reciprocal servitude: def
owner sells lots w restrictions that benefit the land he retained, then owner can’t violate same restriction. Becomes mutual, benefits both parties
covenants: elements: mnemonic
PINT
covenants: elements: list
1) Privity
2) Intent that covenant run w the land
3) Notice
4) Touch + Concern the land
(but start analysis w T+C)
touch + concern the land: def
must have both: dominant estate (benefitted parcel): must increase the use + enjoyment of the dominant estate
servient estate (burdened parcel): restriction must reduce the use + enjoyment of the servient estate
affirmative restriction: def
affirmatively requires burdened estate to do something (ex. maintain the fense)
negative restriction: def
requires burdened estate to NOT do something (can’t build anyting other than an SFD)
intent: def
writing must include language that shows the parties intent for the covenant to run w the land (to bind future owners)
*majority: if T+C, then I is presumed
notice: def
required ONLY for servient estate – current owners of servient estate must have taken w notice of the restriction
notice: kinds (for any property q)
1) actual
2) constructive
3) inquiry
actual notice: def
what you actually know
constructive notice: def
recordation
inquiry notice: def
you learn enough info that would lead a RP to inquire further, but you failed to do so
privity: def
need BOTH:
horizontal +
vertical
horizontal privity: def
privity of k taht exists btwn original covenantor + covenantee
must be in connection w the land, such as:
LL/T
grantor/grantee
mortgagor/mortgagee
(just 2 owners making a k about their land wouldn’t count!)
vertical privity: def
privity of estate. Rship btwn orig party to running covenant + successor in interest
for servient estate, ONLY exists where servient estate owner transfers ALL interest to the new owner! So a life estate or term of years doesn’t count (on dominant side can be just some)
equitable servitude: elements
1) T+C
2) intent
3) Notice
NOT privity!
SOF + ways to dictate use of land
SOF applies to:
covenants
equitable servitudes
but does not apply to:
implied reciprocal servitudes
implied reciprocal servitude: easiest way to create
CC&Rs: covenants, conditions, + restrictions: filed declaration
implied resciprocal servitude: elements
1) wrting NOT required
2) only works for negative restrictions (not affirmative)
3) restriction must be part of COMMON SCHEME OR PLAN for dvt of area +
4) current owner must TAKE WITH some sort of NOTICE (3 kinds ) of the restriction
common scheme: factors
1) large % of lots are expressly burdened
2) oral representations to buyers
3) statements in ads to buyers
4) recorded plat maps or other decs
implied reciprocal servitude: who can enforce?
1) original grantor
2) any purchaser affected by the common scheme
3) condo or subdivision association, for common land conveyed to it
how to terminate covenant or equitable servitude
1) written release (must be from benefitting party)
2) merger
3) abandonment
4) estoppel
5) changed circs so reason behind restriction is no longer valid (works for restrictions only)
merger: def
dominant + servient estates come under common ownership
abandonment: def
owner abandons enforcement + something more that shows intent to abandon (words or conduct)
estoppel: def
servient estate led to believe wouldn’t be enforced + detrimentally relies
who can enforce covenant/equitable servitude?
property owners assns!
easements: analysis
1) properly created?
2) scope?
3) termianted?
servient estate: def
estate burdened by the easement
dominant estate: def
estate benefitted by the easement (don’t have to have one!)
easement appurtenant: def
benefits a parcel of land, has a dominant estate
estaement in gross: def
easement that benefits a person or entity rather than a piece of land – so there is no dominant estate
ways to create an easement
1) expressly
2) by implication (3 kinds)
3) by prescription
express easement: def
writing that satisfies the SOF
easement b implication: kinds
1) prior use
2) necessity
3) by plat
easment by prior use: elements
1) common ownership of dominant + servient estates prior to severance
2) prior use (quasi-easement) prior to severance
3) prior use was apparent or coudl be discovered upon a reasonable inspection +
4) reasonable necessity
easement by necessity: elements
1) common ownership of dominant + servient estate prior to severance
2) strict or absolute necessity
easement by plat: def
buyer in a platted subdivision acquires an implied easement to use streets, alleys, parks in the subdivision
easement by prescription: elements
(c AP)
1) actually, openly, notoriously, exclusively uses the land
2) w hostile intent
3) for statutory period (CL 20 years)
scope of easement: express
limited to what the express easement states the use can be
scope of easement: not express (or doesn’t say)
can be used to the extent reasonably necessary to do so (includes simple subdivisions, but not surcharging the easement)
surcharging the easement: def
overuse of the easement
surcharging the easement: result
does not terminate the easement
but, servient estate can sue for injunction or damages
maintaining the easement: rule
easement holder (dominant estate) may do what is reasonably necessary to maintain the easement, even if it interferes w servient owner’s use of his property
termination of easements: kinds
1) nobody’s fault
2) actions of easement holder
3) actions of servient estate
termination of easements: nobody’s fault: kinds
1) destruction of servient estate
2) end of necessity
termination: nobody’s fault: destruction of servient estate: rule
destruction of servient estate will terminate an easement
UNLESS owner of the servient estate intentionally caused the destruction
termination: nobody’s fault: end of necessity: rule
where easement was created by necessity only.
If necessity ends, the easement ends.
termination of e.: from actions of easement holder: Kinds
1) merger
2) written relase
3) abandonment
4) estoppel
5) severance
termination of e.: from actions of easement holder: merger: def
when same person acquires both dominant and servient estate, merger of title terminates the easement
(and not automatically recreated if servient estate later resold)
termination of e.: from actions of easement holder: written release: def
by holder of easement
expressly terminating rights in easement
must satisfy SOF
termination of e.: from actions of easement holder: abandonment: def
1) intent to abandon AND
2) affirmative act in furtherance of the intent
termination of e.: from actions of easement holder: estoppel: def
owner of servient estate foreseeably detrimentally relied on easement holder's action/abandonment
termination of e.: from actions of easement holder: severance: def
if owner of dominant estate tries to sever easement from the dominant estate, it will terminate the easement. (ex. trying to transfer it to another person).
(otherwise would normally run w the land)
termination of e.: from actions of servient estate: kinds
1) prescription
2) servient estate sold to bona fide purchaser
termination of e.: from actions of servient estate: prescription
owner of servient estate interferes w the use of the easement for the statutory period
termination of e.: from actions of servient estate: servient estate is sold
if servient estate is sold to bona fide purchaser who pays value and takes WITHOUT NOTICE OF THE EASEMENT, then terminates
(otherwise typically runs w the land)
profit: def
like a super-easement: right to go on someone else’s land and take someting off of it
profit: creation
1) express, or
2) by prescription
profit: termination
just like easements
profit: transferrable?
yes
license: def
like a mini-easement: a privilege to go on land, but personal right rather than interest in land
license: creation
can be oral, no SOF
license: termination
freely revocable at any time for any reason
terminates automatically if:
licensee tries to transfer
licensor dies
servient estate conveyed
EXCEPTION: became irrevocable
license: how to become irrevocable
1) license is coupled with an interest
2) executed license
irrevocable licenses: license coupled w an interest: def
(ex. you bought something on someone else’s property)
irrevocable licenses: executed license: def
(person receiving license spends $ or labor in reliance on license–can only be revoked after person gets value out of expenditure
executed license, aka
easement by estoppel
license: transferrable?
no, unless intended by licensor
attempt to transfer will terminate license
fixture: def
chattel attached to land
owned by landowner, so necessary or convenient to the use of the land that it is regarded as part of the land
fixture: transfer?
deed to land transfers all fixtures on property, unless buyer + seller agree otherwise
fixture: mortgages
mortgage covers the land and all its chattels, no matter when the chattels are annexed
zoning ordinances:
conlaw, can challenge under DP / EPC, 1A (if billboards or aesthetics)
support rights; kinds
1) lateral support (sides)
2) subjacent support (underneath)
lateral support: rule: land in natural condition
Absolute right to lateral support from adjoining owners IF your land is in its natural condition. Result: SL if adjoining landowners does not provide lateral support
lateral support: rule: land has been improved
if your land has been IMPROVED:
–if land would have subsided anyway –> adjoining is SL
–if the weight of the improvement was what caused the land to subside, then, adjoiing landowner only liable if negligent in depriving property of natural support
subjacent support: rule
SL for the excavator if:
1) land in its natural state and
2) for buildings that existed on the date when the subajacent estate was severed from surface
negligence liability only for excavator if:
3) subsequently erected buildings were damaged
water rights: majority
riparian view
anyone who is within watershed (touches lake or stream) has righ tot make reasonable use of the water (E)
water rights: minority
prior appropriation / use
first person to take the water for beneficial purposes gets it (W)
diffuse surface water: rules
1) common enemy (E)
2) civil law (W)
3) reasonable use
diffuse surface water: common enemy rule: def
E: flood water can be diverted by any method, even onto another’s land
diffuse surface water: civil law rule: def
W: no interference w any surface water (can’t divert onto someone else’s land)
diffuse surface water: reasoanble use rule: def
surface water can be diverted onto another’s land, if using a reasoanble means to do so
rule for transferring easements
Rule for transferring easements: when dominant estate is transferred, benefit of easement follows. When servient estate is transferred, burden of an express easement that is recorded follows. Easements run w the land, so long as notice exists.
shelter rule
shelter rule: a successor in interest to a person protected by a recording statute is also protected. Recording acts only apply to purchasers for value.
