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Property > Chapter 10: Private Land Use Planning > Flashcards

Chapter 10: Private Land Use Planning Flashcards

1
Q

Easements - terminology

What is the term for the land benefited by the easement?

A

Dominant tenement or dominant land

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2
Q

Easements - terminology

What is the term for the land that is burdened by the easement?

A

Servient tenement or servient land

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3
Q

Easements - terminology

What is the term for the easement holder (the party)?

A

Dominant owner

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4
Q

Easements - terminology

What is the term for the owner of the servient tenement?

A

Servient owner

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5
Q

Easements - terminology

What is an appurtenant easement?

A

It benefits the holder in their use of a specific parcel of land, the dominant tenement

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6
Q

Easements - terminology

What is an easement in gross?

A

It is not connected to the holder’s use of land, rather it is personal to the holder

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7
Q

Easements - terminology

What is an affirmative easement?

A

Allows the holder to perform an act on the servient land

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8
Q

Easements - terminology

What is a negative easement?

A

Allows the holder to prevent the servient owner from performing an act on the servient land

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9
Q

Creating Easements

What does a well-drafted easement by grant contain?

A

Must satisfyt the SOF
1. Indentify parties
2. Describe servient land and dominant land (if applicable)
3. Describe the exact location of the easement on the servient land
4. State the purposes for which the easement may be used

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10
Q

Creating Easements

What is the difference between a license and an easement?

A

A license:
1. Is Informal permission
2. To use land for particular purpose
3. Is not an interest in the land
4. May be revoked at any time

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11
Q

Creating Easements

How is transfer handled for easements in gross?

A

Easements in gross are permitted to transferred unless parties had a contrary intent

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12
Q

Creating Easements

What are the 3 elements needed for implied easement by prior existing use?

A
  1. Severance of title to land held in common ownership;
  2. An existing, apparent, and continuous use of one parcel for the benefit of another at the time of severance; and
  3. Reasonable necessity for that use at the time of severance
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13
Q

Creating Easements

What is reasonable necessity for creating an implied easement?

A

Easement must be beneficial for use of the dominant tenement, but need not be essential.
Example: alternative utilities cannot be obtained without a substantial expenditure of money or labor

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14
Q

Creating Easements

What are the required elements for creating an easement by necessity?

A
  1. Severance of title to land held in common ownership and
  2. Necessity for the easement at the time of severance
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15
Q

Creating Easements

How much necessity is needed to create an easement by necessity?

A

A reasonable necessity: the easement must be beneficial for the use of the dominant parcel, but not absolutely necessary

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16
Q

Creating Easements

How long does easement by necessity last?

A

Only as long as the necessity lasts

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17
Q

Creating Easements

What are the required elements of prescriptive easement?

A
  1. Open and notorious;
  2. Adverse and hostile;
  3. Continuous; and
  4. For the statutory period
    * Tacking may be used
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18
Q

Creating Easements

What are the required elements of an irrevocable license (easement by estoppel)?

A
  1. Landowner allows another to use land, creating a license
  2. Licensee relies in good faith on the license, usually by making improvements and/or incurring costs
  3. Licensor knows or reasonably should expect such reliance will occur
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19
Q

Terminating Easements

What are the standard ways to terminate an easement?

A
  1. Condemnation
  2. Estoppel
  3. Merger
  4. Misuse
  5. Release
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20
Q

Terminating Easements

How does condemnation effect an easement?

A

If the servient land is condemned, the easement is terminated. The easement holder is entitled to just compensation

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21
Q

Terminating Easements

Define estoppel

A

If servient owner substantially changes position in reasonable reliance on the holder’s statement that the easement will no longer be used

22
Q

Terminating Easements

Define merger

A

If one person obtains title to both the easement and the servient land, easement terminates under doctrine of merger

23
Q

Terminating Easements

Define misuse

A

If the holder seriously misuses the easement, it may be terminated through forfeiture

24
Q

Terminating Easements

Define release

A

Easement holder may release the easement to the servient owner via writing that complies with SOF

25
Q

Negative Easements

What is a conservation easement?

A

Restricts the development and use of the servient land in order to preserve open space, farm land, historical sites, or wild and undeveloped land

26
Q

Real Covenants

Define real covenant

A

A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors. Also known as a covenant running at law.

27
Q

Real Covenants

What are the two sides of a real covenant?

A
  1. The burden and
  2. The benefit.
28
Q

Real Covenants

Define the burden

A

Duty to perform a promise.

29
Q

Real Covenants

Define the benefit

A

The right to enforce the promise.

30
Q

Real Covenants

What are the six required elements to prove the burden?

A
  1. Compliance with the statute of frauds;
  2. Intent, to bind successors;
  3. Touch and concern;
  4. Notice;
  5. Horizontal privity; &
  6. Vertical privity
31
Q

Real Covenants

What are the four elements required to prove the benefit?

A
  1. Compliance with the statute of frauds;
  2. intent to bind successors;
  3. touch and concern; &
  4. vertical privity
32
Q

Real Covenants

Define touch and concern

A

Must relate to the enjoyment, occupation, or use of the property. A purely monetary obligation does not touch and concern.

33
Q

Real Covenants

What are the 2 options for horizontal privity (jx split)

A
  1. Mutual interests (landlord-tenant); successive interests (grantor grantee) or
  2. no requirement
34
Q

Real Covenants

What are mutual interest for horizontal privity?

A

Where the original parties have mutual simultaneous interest in the affected land, e.g., landlord and tenant; cotenants; or owners of the dominant in servient land for an easement.

35
Q

Real Covenants

What are successive interests for horizontal privity?

A

This element can be satisfied by a grantor–grantee relationship between the original parties, so that they have successive interest in the affected land

36
Q

Real Covenants

What is required for a vertical privity when the burden flows to the grantee?

A

The successor must receive the entire estate that the original promisor held.

37
Q

Real Covenants

What is required for a vertical privity when the benefit flows to the grantee?

A

Vertical privity is found if the successor received either the original promisee’s entire estate or a smaller estate.

38
Q

Real Covenants

What is the remedy for breach of a real covenant?

39
Q

Equitable Servitudes

What are the requirements for the burden to run for equitable servitude?

A
  1. Statute of frauds or common plan;
  2. intent to bind successors;
  3. touch and concern; and
  4. notice
40
Q

Equitable Servitudes

What are the requirements for the benefit to run for equitable servitude?

A
  1. Statue of frauds, or common plan;
  2. intent, to bind successors; and
  3. touch and concern
41
Q

Equitable Servitudes

What is the remedy for breach of equitable servitude?

A

Injunction.

42
Q

Discriminatory Covenants

What is the language in the FHA that limits Discriminatory Covenants?

A

“It is unlawful to make, print, or publish any notice or statement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race.”

43
Q

Common Interest Communities (CIC)

What is a CIC?

A

A planned residential development
1. Where all properties are subject to comprehensive private land, use restrictions and
2. Which is regulated by a homeowners association

44
Q

Common Interest Communities (CIC)

What are the four basic parts of a declaration that creates a CIC?

A
  1. Homeowners association;
  2. CC&Rs;
  3. assessment;
  4. ownership rights
45
Q

Common Interest Communities (CIC)

What is a homeowners association?

A
  1. It establishes the association that will administer the CIC,
  2. specifies the association’s powers, and
  3. provides for elected board
46
Q

Common Interest Communities (CIC)

What are CC&Rs?

A

Restrictions on all land within the CIC. They may be enforced as real covenants or equitable servitudes.

47
Q

Common Interest Communities (CIC)

What are the ownership rights?

A

Provide that each unit holds fee simple absolute in his unit, and undivided interest in the common area, and a membership interest in the association.

48
Q

Common Interest Communities (CIC)

What are 3 defenses to a CC&R?

A
  1. Unreasonableness;
  2. abandonment; and
  3. changed conditions.
49
Q

Common Interest Communities (CIC)

When does a servitude violate public policy under the Rest.?

A
  1. If it is arbitrary, spiteful, or capricious;
  2. unreasonably burdens a fundamental constitutional right;
  3. imposes an unreasonable restraint on alienation;
  4. imposes an unreasonable restraint on trade or competition; or
  5. is unconscionable
50
Q

Common Interest Communities (CIC)

When does a servitude violate public policy under Nahrstedt?

A
  1. If the restriction is arbitrary;
  2. imposes burdens that substantially outweigh the benefit to the development’s residents; or
  3. violates a fundamental public policy.
51
Q

Common Interest Communities (CIC)

How do courts handle restrictions on commercial use?

A

Courts generally enforce restrictions that prohibit leasing units, however, most courts have a reason that Airbnb is a residential use.

Property (11 decks)

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