Adverse possession and Servitudes Flashcards
What kind of situations does adverse possession usually arise in?
in instances of mutual mistake regarding a boundary
What are the elements for adverse possession
Actual Entry
Exclusive
Open and notorious
Adverse as a claim of right
Continuous
For the statutory period
What is actual entry?
physically being in the land, such as building, planting, mistaken building
What is exclusive?
the person is excluding the property like a reasonable true owner would. It is not being shared beyond the ways a reasonable true owner would
What is open and notorious?
the possessor is sending a message that this property is his and putting the true owner on notice- - using the property like a reasonable true owner would use property of that character. Courts do not usually require that the true owner actually knows about the trespass to his land, only that he should have known that someone was using his land like a true owner would
What is adverse claim of right?
the true owner must not have given the adverse possessor permission to enter the land; otherwise it is not adverse
If the true owner is not clear on whether they gave the possessor permission or not, what happens?
The burden shifts to the true owner to prove that they DID give the possessor permission
What are the three different types of mindsets that different jurisdictions require for adverse possesors entering the land?
Objective state of mind jurisdictions don’t care what the possessor was thinking when he entered the land
good faith jurisdictions require that the possessor enter the land with the false belief that the land belonged to them
bad faith/intentional jurisdiction, where the possessors can only meet this element by entering this land with the intention of taking someone else’s land
What is the continuous element?
using the property like a reasonable true owner would use property of that character.
What is tacking?
The practice of adding together successive time periods of adverse possessors in order to reach the statutory minimum
What are the two requirements for tacking?
A voluntary transfer of property between possessors
Unbroken chain of possessors
What does “for the statutory period” mean?
all the elements need to be met for whatever length of time is set out in the statute (varies by state)
What happens if a true owner files a trespass claim during the statutory period?
The continuous element is broken
What is possession by prescription?
If someone is on the land for a specific use rather than treating it like a true owner would, they may earn an easement to permanently use the land for that specific purpose
What are the elements for prescription?
Open and Notorious
Adverse claim of right
Continuous
Statutory period
Actual entry
What is a servitude?
A non-possessory interest in land that allows the holder to make use of the land or prevent something from being done on the property.
What is an easement?
It is a legal right to do something on somebody else’s land
How are most easements created?
Formally by deed
Easements run with the land if they….(3 things)
1) It is in writing
2) The grantor intended for the easement to run to her successors
3) The grantor’s successors are put on notice of the burden
What is the statute of fraud?
the statute that prevents fraud by requiring real estate transactions to be in writing. Prevents people from saying that there were oral agreements to exchange land when there was none
What are five informal ways in which easements are created, that do not require writing?
Easement by prescription
Custom
Easement by estoppel
Easement by prior apparent use
Easement by necessity
What is easement by prescription?
Easement created by the open and adverse use of another’s land for a specific purpose
What is easement by estoppel?
An irrevocable right to a specific use of the property of another that is established by permission from the owner to use and improve the property that induces the licensee to use and make such improvements at his own expense
What is the norm with licenses?
They can normally be revoked at any time
What are the requirements for an easement by estoppel?
It should be clear that the other person expects the permission to continue, they have invested a lot into the property, and it would be unfair to take back the permission later
What is an easement by prior use and what two situations is it commonly found in?
easement created by implication due to a previously established, noticeable use of the land. Either 2 parcels previously owned by the grantor are subdivided or 1 parcel previously used for the benefit of the other in an apparent and continuous manner
What is required for an easement by prior use?
While not technically landlocked, use is reasonably necessary or convenient for enjoyment of dominant use
What is easement by necessity?
allows the easement holder a right of way over the conveyer’s adjacent land because it is the only means of getting to important landmarks such as a highway
What is the majority opinion on easement by necessity?
A can have access to B’s property if there is a strict necessity and the parties intended for there to be a pathway
What is the minority opinion on easement by necessity?
A can have access to B’s property if there is a strict necessity. The parties need not have the intention for there to be a pathway
Who has the higher burden in necessity cases?
The grantor. They have the higher burden of proof to show that revoking permission is necessary
What is an easement appurtenant?
an easement that runs with the land for the benefit of the dominant tenement, the burden rests on the servient
Easements are assumed to be _______
appurtenant
What are easements in gross?
An easement that belongs to the easement holder independently of a parcel of land and thus does not run with and is not attached to the land. Needs special documentation for this
How can easements be terminated?
1) Agreement in writing
2) By their own terms- ex if the deed specifically states a time period
3) By merger- when the holder of the servient estate becomes the owner of the dominant estate
4) By abandonment- if it can be shown that the owner of the easement acted in a way that indicated an attempt to abandon the easement
5) By adverse possession or prescription by the owner of the servient estate or third party
6) Frustration of purpose- if the easement becomes impossible to accomplish or it no longer serves its intended purpose
What is a real covenant?
An agreement between two parties not to do something on someone’s land enforced by money damages
What are equitable servitudes?
covenants could be enforced by injunction despite the lack of privity if they met the other elements + notice of the restirction
What are the requirements for a real covenant?
1) The covenant must be in writing (minus some very rare exceptions)
2) the grantor has to intend that the benefits and burdens of the promise run with the land.
3) Horizontal privity- the promise was made during a transfer of land or leasing land and makes clear that the promise is built into the purchase price of that land, aka purchase price reflects the promise
Vertical privity- A formal transfer of land that occurs between an original party and a successor
4) There is some effect or use of the land itself
5) Notice? maybe
What are the requirements for equitable servitudes?
1) The covenant must be in writing (minus some very rare exceptions)
2) the grantor has to intend that the benefits and burdens of the promise run with the land.
3) Notice
4) There is some effect or use of the land itself
What is the presumption if a covenant is silent on whether it runs with the land or not?
The presumption is that covenants run with the land
What are the different types of notice?
a. Inquiry notice- a buyer should have inquired something about the land given the circumstances
b. Actual notice
c. Constructive/record notice- something in the chain of title that indicates that there was something that is making your title less whole
What is The Doctrine of Instantaneous privity?
a legal concept where privity (a direct relationship or connection between parties) is recognized at the moment a covenant or agreement is made, even if the parties involved don’t have an ongoing, long-term relationship
It is illegal to enforce what kind of covenants?
racially segregated covenants.
What is the exception to the writing requirement in covenants?
Implied Reciprocal Negative Servitudes- when an owner sells a number of parcels with evidence of intent to create a common plan or scheme of development
What are the requirements for implied reciprocal negative servitudes?
(1) covenants made to the seller benefit all parcels within the plan and
(2) all parcels within the plan are bound by the covenants
