Adjacent Owner Issues - Part 3 - Chapters 15-17 Flashcards
Identify conduct which constitutes unreasonable interference with an easement holder’s rights
An owner of property benefiting from an easement allowing them to use a neighbor’s property may stop any activity which interferes with their proper use of the easement. However, the interfering activity occurring within the parameters of the easement needs to actually interfere, either physically or buy intangible action, with the intended use granted by the easement.
Define the different methods of extinguishing an easement
An existing easement can be extinguished, no longer affecting the burden property as an encumbrance on its title. Methods used to extinguish an easement include:
- RELEASE of the easement by a deed from the owner of the property holding the appurtenant right to the easement
- MERGER by the acquisition of both the benefiting and burdened properties by the same owner
- DESTRUCTION of the burdened property
- FORFEITURE -ABUSE due to the easement holders abuse of their easement rights
- PRESCRIPTION due to the burdened Property Owners continuing interference with the easement
- ABANDONMENT by the conduct of the easement holder showing they never intend to use their easement rights again.
Determine whether an easement holder’s conduct indicates an abandonment or forfeiture of the easement
The standards for forfeiture are vague and often left to the discretion of the courts to determine, on a case-by-case basis, whether the easement holders action created undue hardship on the owner of the property burdened by the easement.
An adverse use which terminates an easement is any act by the burden property owner which permanently obstructs the beneficial use enjoyed by the holder of the easement.
To establish the termination of an easement by abandonment, the easement holders actions need to demonstrate a clear intent to permanently abandon all future use of the easement, never to use it again.
Note the mere “non-use of an easement” is not sufficient conduct to demonstrate an easement holders intent to terminate an easement by abandonment.
merger
A MERGER is the termination of an easement when one owner acquires fee title to both the property benefiting from and the property burdened by an easement. The reason for this is because an owner cannot have an easement over their own property for the benefit of their own property. Thus, the easement is automatically extinguished in the common ownership of both the properties.
forfeiture
FORFEITURE-ABUSE is the termination of an easement when the easement holder exceeds their authorized use of the easement by placing an excessive burden on the property encumbered by the easement. In other words an easement is terminated by forfeiture when the easement holder exceeds their authorized use of the easement by placing an excessive burden on the property encumbered by the easement.
abandonment
ABANDONMENT is the termination of an easement when the easement holders actions demonstrate a clear intent to permanently abandon all future use of the easement. Note the termination of an easement by abandonment is not easily established. Also note the mere “non-use of an easement” is not sufficient conduct to demonstrate an easement holders intent to terminate an easement by abandonment. In an example the buyers planting of trees which block access to the easement road does not indicate they have decided to never use the easement in the future.
Understand the limitations and restrictions on use applicable to all property owners in a subdivision set out in the covenants, conditions and restrictions (CC&Rs)
Restrictive use covenants are contained in a subdivision covenants, conditions and restrictions (CCRs). A recorded restriction LIMITING THE USE of a property to a specific purpose is referred to as an Affirmative Covenant. A recorded restriction PROHIBITING IDENTIFIED USES of a property is classified as a Negative Covenant.
Restrictions on selling, leasing or encumbering real estate may not unreasonably restrict the marketability of a property, except as controlled by Federal Mortgage Law under due on clause enforcement.
An exception to the rule against unreasonable restrictions is the due on sale Clause contained in a mortgage lenders trust deed. Due on sale Clauses are no longer controlled by California law. Federal mortgage law permits all lenders to enforce their due on clause on a transfer of any interest in the real estate, except:
- short-term leases up to three years not coupled with a purchase option and
- intra-family transfers of 124 unit owner-occupied residential property on the death of an owner for Equity financing.
Determine when a covenant runs with title to real estate
Recorded CCRs run with the land, or bind future owners of the subdivided lots. For a covenant to run with the land and affect future owners, the restriction needs to directly benefit the property.
For a covenant to run with the land and affect title and future owners, the Restriction needs to directly benefit the property. Thus, to benefit one lot, all lots within the subdivision need to be burdened by the same restriction. When the use restriction equally benefits and burdens each lot in the subdivision, the restriction runs with the title or runs with the land to each lot and affects all future owners.
When a restriction is classified as a Personal Covenant the Restriction against use is merely a personal promise and does not run with the land, thus, it may not be imposed on a developer or individual who later acquires title to the real estate.
Distinguish between affirmative and negative covenants
An Affirmative Covenant is a recorded restriction limiting the use of a property to a specific purpose. a recorded restriction may limit the use of a property known as an affirmative covenant, to a specific purpose such as a school, railroad, highway, dwelling or irrigation system.
A Negative Covenant is a recorded restriction prohibiting identified uses of a property. Restrictions are classified as negative covenants, for example, prohibiting the sale of alcoholic beverages or other activities otherwise allowed to take place on the property.
Understand the circumstances allowing CC&Rs to be amended or removed when they are an unlawful restriction
Unlawful restrictive covenants in CCRs may be removed from title under a program available under the Restrictive Covenant Identification Service (RCIS) through the California Department of Fair Employment and Housing (DFEH).
When conditions in the area near a property have changed so drastically that a covenant may no longer serve its intended purpose, the Covenant is unenforceable under the doctrine of “Changed Conditions.”
covenants, conditions and restrictions (CC&Rs)
Covenants, conditions and restrictions (CCRs) are recorded restrictions against the title to real estate prohibiting or limiting the specified uses of the property. A subdivider typically records CCRs when recording the original subdivision map. A prospective buyer of a home in a subdivision protect themselves from unknowingly buying property burdened with unwanted restrictions by reviewing a preliminary title report prior to closing and acquiring a property. A preliminary title report or prelim discloses the results of the title company search of the property’s title history, which includes CCRs of record.
affirmative covenant
An AFFIRMATIVE COVENANT is a recorded restriction limiting the use of a property to a specific purpose. a recorded restriction may limit the use of a property known as an affirmative covenant, to a specific purpose such as a school, railroad, Highway, dwelling or irrigation system.
negative covenant
A NEGATIVE COVENANT is a recorded restriction prohibiting identified uses of a property. restrictions are classified as Negative Covenants, for example, prohibiting the sale of alcoholic beverages or other activities otherwise allowed to take place on the property.
amendment clause
An AMENDMENT CLAUSE is a clause contained in the CCRs establishing a procedure for modifying the CCRs.
Calculate the allocation of costs incurred to maintain an easement shared by multiple users
When several owners share an easement, they also share the responsibility to repair and maintain the easement.
An owner of property who holds a private right of way easement across an adjacent property is responsible for maintenance of the right of way, not to the owner of the adjacent property burdened by the easement.
Owners of separate Parcels who are entitled to use the same appurtenant easement occasionally are subject to an easement maintenance agreement. When an owner fails to contribute under the maintenance agreement, the other owners need to make a written demand on the easement user in default before taking legal action for reimbursement.
