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Bar Property > 5) Rights in Land > Flashcards

5) Rights in Land Flashcards

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1
Q

ways to dictate how land is to be used (kinds)

A

1) covenant
2) equitable servitude
3) implied reciprocal servitude

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2
Q

ways to make affirmative use of the land (kinds)

A

1) easement
2) profit
3) license

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3
Q

covenant vs equitable servitude

A

covenant –> damage

equitable servitude –> injunction

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4
Q

implied reciprocal servitude: def

A

owner sells lots w restrictions that benefit the land he retained, then owner can’t violate same restriction. Becomes mutual, benefits both parties

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5
Q

covenants: elements: mnemonic

A

PINT

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6
Q

covenants: elements: list

A

1) Privity
2) Intent that covenant run w the land
3) Notice
4) Touch + Concern the land
(but start analysis w T+C)

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7
Q

touch + concern the land: def

A 
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

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8
Q

affirmative restriction: def

A

affirmatively requires burdened estate to do something (ex. maintain the fense)

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9
Q

negative restriction: def

A

requires burdened estate to NOT do something (can’t build anyting other than an SFD)

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10
Q

intent: def

A

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

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11
Q

notice: def

A

required ONLY for servient estate – current owners of servient estate must have taken w notice of the restriction

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12
Q

notice: kinds (for any property q)

A

1) actual
2) constructive
3) inquiry

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13
Q

actual notice: def

A

what you actually know

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14
Q

constructive notice: def

A

recordation

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15
Q

inquiry notice: def

A

you learn enough info that would lead a RP to inquire further, but you failed to do so

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16
Q

privity: def

A

need BOTH:
horizontal +
vertical

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17
Q

horizontal privity: def

A

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!)

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18
Q

vertical privity: def

A

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)

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19
Q

equitable servitude: elements

A

1) T+C
2) intent
3) Notice

NOT privity!

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20
Q

SOF + ways to dictate use of land

A

SOF applies to:
covenants
equitable servitudes

but does not apply to:
implied reciprocal servitudes

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21
Q

implied reciprocal servitude: easiest way to create

A

CC&Rs: covenants, conditions, + restrictions: filed declaration

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22
Q

implied resciprocal servitude: elements

A

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

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23
Q

common scheme: factors

A

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

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24
Q

implied reciprocal servitude: who can enforce?

A

1) original grantor
2) any purchaser affected by the common scheme
3) condo or subdivision association, for common land conveyed to it

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25
Q

how to terminate covenant or equitable servitude

A

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)

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26
Q

merger: def

A

dominant + servient estates come under common ownership

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27
Q

abandonment: def

A

owner abandons enforcement + something more that shows intent to abandon (words or conduct)

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28
Q

estoppel: def

A

servient estate led to believe wouldn’t be enforced + detrimentally relies

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29
Q

who can enforce covenant/equitable servitude?

A

property owners assns!

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30
Q

easements: analysis

A

1) properly created?
2) scope?
3) termianted?

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31
Q

servient estate: def

A

estate burdened by the easement

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32
Q

dominant estate: def

A

estate benefitted by the easement (don’t have to have one!)

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33
Q

easement appurtenant: def

A

benefits a parcel of land, has a dominant estate

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34
Q

estaement in gross: def

A

easement that benefits a person or entity rather than a piece of land – so there is no dominant estate

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35
Q

ways to create an easement

A

1) expressly
2) by implication (3 kinds)
3) by prescription

36
Q

express easement: def

A

writing that satisfies the SOF

37
Q

easement b implication: kinds

A

1) prior use
2) necessity
3) by plat

38
Q

easment by prior use: elements

A

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

39
Q

easement by necessity: elements

A

1) common ownership of dominant + servient estate prior to severance
2) strict or absolute necessity

40
Q

easement by plat: def

A

buyer in a platted subdivision acquires an implied easement to use streets, alleys, parks in the subdivision

41
Q

easement by prescription: elements

A

(c AP)

1) actually, openly, notoriously, exclusively uses the land
2) w hostile intent
3) for statutory period (CL 20 years)

42
Q

scope of easement: express

A

limited to what the express easement states the use can be

43
Q

scope of easement: not express (or doesn’t say)

A

can be used to the extent reasonably necessary to do so (includes simple subdivisions, but not surcharging the easement)

44
Q

surcharging the easement: def

A

overuse of the easement

45
Q

surcharging the easement: result

A

does not terminate the easement

but, servient estate can sue for injunction or damages

46
Q

maintaining the easement: rule

A

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

47
Q

termination of easements: kinds

A

1) nobody’s fault
2) actions of easement holder
3) actions of servient estate

48
Q

termination of easements: nobody’s fault: kinds

A

1) destruction of servient estate

2) end of necessity

49
Q

termination: nobody’s fault: destruction of servient estate: rule

A

destruction of servient estate will terminate an easement

UNLESS owner of the servient estate intentionally caused the destruction

50
Q

termination: nobody’s fault: end of necessity: rule

A

where easement was created by necessity only.

If necessity ends, the easement ends.

51
Q

termination of e.: from actions of easement holder: Kinds

A

1) merger
2) written relase
3) abandonment
4) estoppel
5) severance

52
Q

termination of e.: from actions of easement holder: merger: def

A

when same person acquires both dominant and servient estate, merger of title terminates the easement

(and not automatically recreated if servient estate later resold)

53
Q

termination of e.: from actions of easement holder: written release: def

A

by holder of easement
expressly terminating rights in easement
must satisfy SOF

54
Q

termination of e.: from actions of easement holder: abandonment: def

A

1) intent to abandon AND

2) affirmative act in furtherance of the intent

55
Q

termination of e.: from actions of easement holder: estoppel: def

A 
owner of servient estate
foreseeably
detrimentally
relied on 
easement holder's action/abandonment
56
Q

termination of e.: from actions of easement holder: severance: def

A

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)

57
Q

termination of e.: from actions of servient estate: kinds

A

1) prescription

2) servient estate sold to bona fide purchaser

58
Q

termination of e.: from actions of servient estate: prescription

A

owner of servient estate interferes w the use of the easement for the statutory period

59
Q

termination of e.: from actions of servient estate: servient estate is sold

A

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)

60
Q

profit: def

A

like a super-easement: right to go on someone else’s land and take someting off of it

61
Q

profit: creation

A

1) express, or

2) by prescription

62
Q

profit: termination

A

just like easements

63
Q

profit: transferrable?

A

yes

64
Q

license: def

A

like a mini-easement: a privilege to go on land, but personal right rather than interest in land

65
Q

license: creation

A

can be oral, no SOF

66
Q

license: termination

A

freely revocable at any time for any reason

terminates automatically if:
licensee tries to transfer
licensor dies
servient estate conveyed

EXCEPTION: became irrevocable

67
Q

license: how to become irrevocable

A

1) license is coupled with an interest

2) executed license

68
Q

irrevocable licenses: license coupled w an interest: def

A

(ex. you bought something on someone else’s property)

69
Q

irrevocable licenses: executed license: def

A

(person receiving license spends $ or labor in reliance on license–can only be revoked after person gets value out of expenditure

70
Q

executed license, aka

A

easement by estoppel

71
Q

license: transferrable?

A

no, unless intended by licensor

attempt to transfer will terminate license

72
Q

fixture: def

A

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

73
Q

fixture: transfer?

A

deed to land transfers all fixtures on property, unless buyer + seller agree otherwise

74
Q

fixture: mortgages

A

mortgage covers the land and all its chattels, no matter when the chattels are annexed

75
Q

zoning ordinances:

A

conlaw, can challenge under DP / EPC, 1A (if billboards or aesthetics)

76
Q

support rights; kinds

A

1) lateral support (sides)

2) subjacent support (underneath)

77
Q

lateral support: rule: land in natural condition

A

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

78
Q

lateral support: rule: land has been improved

A

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

79
Q

subjacent support: rule

A

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

80
Q

water rights: majority

A

riparian view

anyone who is within watershed (touches lake or stream) has righ tot make reasonable use of the water (E)

81
Q

water rights: minority

A

prior appropriation / use

first person to take the water for beneficial purposes gets it (W)

82
Q

diffuse surface water: rules

A

1) common enemy (E)
2) civil law (W)
3) reasonable use

83
Q

diffuse surface water: common enemy rule: def

A

E: flood water can be diverted by any method, even onto another’s land

84
Q

diffuse surface water: civil law rule: def

A

W: no interference w any surface water (can’t divert onto someone else’s land)

85
Q

diffuse surface water: reasoanble use rule: def

A

surface water can be diverted onto another’s land, if using a reasoanble means to do so

86
Q

rule for transferring easements

A

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.

87
Q

shelter rule

A

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.

Bar Property (9 decks)

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