Disputes About the Use of Land

Question 1

What is an easement?

Who is the dominant estate and the servient estate in an easement?

Answer 1

The right held by one person to make specific and limited use of land owned by another.

The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement on a servient estate is the dominant estate.

Question 2

What are the four classifications of easement?

Answer 2

Four classifications of easements are
-> easement appurtenant
-> easement in gross
-> affirmative easements
-> negative easements

Question 3

What is an easement appurtenant?

Answer 3

Easements are PRESUMED to be appurtenant (i.e., TIED TO THE LAND) unless there are clear facts to the contrary.
-> The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate.

Question 4

What is an easement in gross?

Answer 4

An easement is in gross if it was granted to benefit a particular person (as opposed to the land).

Question 5

What is an affirmative easement?

Answer 5

Most easements are affirmative, giving the holder the right to make affirmative use of another’s property (e.g., the right to cross another’s land to access a highway).

Question 6

What is a negative easement?

How must a negative easement be specifically made?

What does a negative easement usually cover?

Answer 6

Prevents owner from using land in specific ways.

Must be expressly created by writing signed by grantor.

Usually only recognized for light/air/support/stream water from artificial flow

Question 7

What are the four ways an easement can be created?

Answer 7

An easement can be created in the following four ways:
-> express easement
-> easements by necessity and implication
-> easement by prescription
-> easement by estoppel

Question 8

What is an express easement?

Answer 8

An easement that is
-> affirmatively created by parties in WRITING that satisfies requirements for a deed (must be written, description of land, signed by grantor, identifies grantee, and includes words of transfer)
AND
-> by GRANT (owner of servient estate grants to another an easement in the servient estate) or by RESERVATION (owner gives servient estate to another but retains easement in servient estate for own or third party benefit)

Question 9

What is an easement out of necessity?

Answer 9

It’s an easement made out of the following three requirements:

1. Dominant/servient estates must have been under common ownership
2. Necessity must arise when property severed and estates created
3. Property is virtually useless without benefit of easement across adjacent property

Question 10

What Is an easement of implication?

Answer 10

Needs the following four requirements:

1. Dominant/servient estates must have been under the common ownership
2. A quasi-easement existed at severance; may also be implied from a subdivision map or plat ownership
3. Prior use was continuous, apparent, or known
4. Easement reasonably necessary to dominant estate’s use/enjoyment (not strictly necessary)

Question 11

What is a quasi-easment under an easement by implication?

Answer 11

Where an owner makes use of one portion of his land for the benefit of another part of his land.
-> use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment

Question 12

What is a prescription (aka easement by prescription)?

How is an easement by prescription different to adverse possession?

Answer 12

Easement gained when use is:

1. Continuous - uninterrupted for the statutory period
2. Actual - use of the land
3. Open - apparent or visible to a reasonable owner
   AND
4. Hostile - without the owner’s permission

Easement by prescription is different to AP because easement by prescription NEED NOT be EXCLUSIVE. AP needs
-> continuous
-> actual (includes open and notorious)
-> hostile
-> exclusive

Question 13

What type of land can a tenant not gain an easement by prescription over?

Answer 13

-> the leased premises because they have permission to be there
-> other lands owned by the landlord, as tenants are said to act in the landlord’s place so tenants lack adverse interest to get an easement by prescription (and an AP)

Question 14

What is an easement by estoppel?

Answer 14

Good-faith, reasonable, detrimental reliance (by dominant estate) on permission by a servient estate holder to make a limited use of her property can create an easement by estoppel if necessary to prevent an injustice.

Question 15

How are easements appurtenant and easements in gross transferred?

Answer 15

Easements appurtenant
-> An easement appurtenant is transferred with the land to which it relates.
-> benefit is transferred automatically with the dominant estate
-> burden is transferred automatically with the servient estate

Easement in gross
-> burden transferred automatically with transfer of servient estate
-> benefit transferable IF commercial OR parties intended personal use to be transferred

Question 16

Can an easement in gross be apportioned?

What is the “one stock” rule?

Answer 16

Whether a transferable easement in gross can be apportioned turns on the terms of the easement and whether the apportionment unreasonably increases the burden on the servient estate.
-> The apportionment of an exclusive easement is more likely to be in accord with the intent of the parties than the apportionment of non-exclusive easement.

Traditionally, courts applied a “one stock” rule regarding the apportionment of an easement in gross.
-> Under this rule, the use that the transferees make of the easement collectively is limited by the use that the transferor made of the easement (i.e., his “stock”).

Question 17

What is the scope of an easement?

Answer 17

Court looks to reasonableness of use and intent of original parties and ambiguities resolved in favor of grantee (person receiving benefit from easement).

Question 18

How to terminate an easement in eight ways?

Answer 18

Release -> by writing that satisfies the requirements for the creation of deed

Merger -> easement merges into title when owner of dominant or servient estates acquires fee title to the other estate (either dominant or servient estate - opposite of whichever they previously owned)

Severance -> severed by attempt to convey appurtenant easement separate from land it benefits

Abandonment -> owner affirmatively acts to show clear intent to abandon right

End of necessity for easement by necessity, destruction of structure related to easement on servient estate, or condemnation of servient estate.

End of a easement by prescription -> if the owner of the servient estate acts in the same manner to “reclaim” portion of easement on their land.

Estoppel

Question 19

What is insufficient to terminate easement through abandonment?

Answer 19

Statements of intent without conduct AND mere non-use insufficient to extinguish easement right.

Question 20

How is an easement terminated through estoppel?

Answer 20

If the servient estate owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned, then the easement holder may be estopped from asserting the easement.

Question 21

Is an easement terminated or unenforceable if the express easement is granted but not recorded, and a BFP buys the land?

Answer 21

Unrecorded express easement not enforceable against BFP (bona fide purchaser) of servient estate, depending on recording statute.
-> easement still alive but simply can’t be enforced against BFP

Question 22

What is the duty to maintain an easement?

Can an owner seek costs of reasonable repair and maintenance from co-owners?

Answer 22

Easement owner has right and duty to maintain the easement.

May seek contribution from co-owners of the easement for the cost of reasonable repairs and maintenance, in proportion to their use

Question 23

What is a profit (aka a “profit a prendre”)?

Can it be transferred?

Answer 23

Entitles holder to enter servient and take from it the soil or some substance of the soil such as mineral, timber, and oil; created and analyzed similarly to easements, except profits cannot be created by necessity.

Yes unless it’s personal or wasn’t meant to be transferred.

Question 24

What is a license?

What is an irrevocable license?

Does a license need to satisfy of SoF?

Answer 24

Privilege to enter another’s land, that is always freely revocable.

Irrevocable license:
-> A license that has an interest (e.g. holder of a FI in a life estate, going on to the land to make sure there is no waste) attached to it or that is detrimentally relied upon.

Does not need to satisfy SoF unlike an easement which does.

Question 25

What kind of invalid easements become licenses?

Answer 25

Invalid oral easements may create license (easements that needed to be in writing such as express. easements or negative easements).

Question 26

How can an irrevocable license be treated as an easement and what kind of an easement?

How is it different to an easement?

Answer 26

An irrevocable license that is relied upon through detrimental reliance can be maintained through estoppel (making it similar to an easement by estoppel).

However, an irrevocable license is only attached to the licensor while an easement by estoppel attaches to all successors of the dominant estate.

Question 27

How are real covenants and equitable servitudes different compared to easements, licenses, and profits?

Answer 27

Real covenants and equitable servitudes tend to:
-> restrict the right to use RP
OR
-> impose obligations on the owners of RP.

Question 28

How do you differentiate between a real covenant and an equitable servitude with regards to the damages being sought?

Answer 28

If you’re seeking to enforce the covenant with DAMAGES then you’re dealing with a REAL COVENANT.

If you’re seeking to enforce the covenant with an INJUNCTION then you’re dealing with EQUITABLE SERVITUDE.

Question 29

What are real covenants and what are their requirements?

What are their requirements for them to pass onto successors (hint: privity)?

Answer 29

They have the following requirements:

1. Be in Writing -> must comply with SoF to be enforced as real covenant
2. Evidence of Intent -> rights/duties to run with land through explicit language or implied from totality of circumstances
3. Touch/concern the land-> benefit or burden must affect promisee/promisor as owners of land
4. Notice to future purchasers in order for those purchasers to be BURDENED by covenant
   -> must be constructive (recorded in the chain of title so if they looked at chain of title they would see it) or actual (they had actual knowledge of the covenant)
5. PRIVITY

-> Need horizontal privity, for the burden to keep running, between original parties at the time it was created.
—-> Horizontal privity refers to there being a shared interest in the property BEYOND the covenant, which can be show through privity of estate, where the estate and covenant are contained in the same instrument (e.g. the deed) BUT that is only ONE WAY out of multiple.
—-> You do NOT need horizontal privity for the benefit to keep running.

-> Need STRICT vertical privity, to run the burden of the covenant to the successor, which is achieved when the successor takes the original party’s ENTIRE interest in the land.
-> Need RELAXED vertical privity, to run the benefit of the covenant to the succesor, which is achieved when the successor takes simply a CARVED OUT interest in the original party’s interest in the land.
—-> Vertical privity refers to the relationship between the original party to the agreement and his/her successors to the property.

NOTE
-> modern trend - no privity required, affirmative covenants run to successors of an estate of the same duration as the estate of the original party, while negative covenants are analyzed similarly to easements

Question 30

What’s a negative covenant and an affirmative covenant?

Answer 30

Negative covenants
-> run with the land if they restrict the owner’s use or enjoyment of the land

Affirmative covenants
-> run with the land if they require the owner to do something related to the use and enjoyment of the land

Question 31

What are equitable servitudes?

Answer 31

Operates like a real covenant but easier requirements to meet:

1. Must be in writing (except for implied reciprocal servitudes)
2. Evidence of intent of restriction to run with the land
3. Must touch/concern (no privity required) the land
4. If the servitude is to be enforced against a purchaser, the purchaser needs notice (actual, record/constructive , or inquiry)

Question 32

What is implied reciprocal servitude?

Answer 32

Requirements:

1. Intent to create servitude on all plots (common scheme where implied reciprocal servitudes are found); no writing required
2. Promise must be reciprocal (benefits and burdens each land)
3. Must be a negative servitude (promise to refrain from doing something)
4. A successor must be on notice (actual, record, or inquiry) for it to being enforced against them
5. Must be a common plan or scheme

Question 33

What are the defenses to enforcement of covenants and equitable servitudes?

Answer 33

-> Changed circumstances (doesn’t make sense due to changes in the are to keep enforcing it);
-> Laches (unreasonable delay by plaintiff); AND
-> Unclean hands (plaintiff not acting in good faith); acquiescence; estoppel

Question 34

How does the transfer and termination of covenants running with the land work?

Answer 34

These real property rights and obligations are transferred along with the real property itself.
-> Notice is generally required to enforce them against BFP.
-> They’re terminated upon release, merger, abandonment, estoppel or condemnation.

Question 35

What are common-interest ownership communities?

What are the types of common-interest ownership communities?

How are such communities governed?

What are the powers of the community board?

What is required for the creation of new rules?

Answer 35

Individually owned units are burdened by a covenant to pay an association that provides services and enforces other covenants.

Types:
- property owners’ association
- condos (owners own unit and share of common areas)
- cooperatives

Governance -> governed by association, which is overseen by a board of directors. Rules laid out by declaration and other governing documents.

Powers of general board within community:
-> raise assessments/fees (for general upkeep, repair, improvements)
-> manage, acquire, improve common property
-> adopt rules governing use of common and individually owned property, to protect the common property (must not unreasonably interfere with owners’ rights)

—-> new rules must reasonably be related to the legitimate purpose of the association
- enforce governing documents and rules
- community has corresponding duties

Question 36

How does foreclosure on a mortgage in a cooperative impact the lease holders of the cooperative?

Answer 36

Unlike condominiums, a cooperative is covered by a blanket mortgage which means that foreclosure on the mortgage, terminates all leases.

Question 37

What is a fixture?

Answer 37

Fixture -> chattel SO ATTACHED to RP such that it is treated as part of the RP when determining its ownership.

Question 38

What is a trade fixture?

Answer 38

Trade fixture -> chattel used in a trade or business that is attached to RP (e.g. restaurant stove)

Question 39

How to deal with structures built on RP and items incorporated into structure?

Answer 39

Become part of real property, but can be removed if:
- seller reserves right to remove fixture in sale K
- leased property can be restored to former condition without damage in reasonable time

Question 40

What does the doctrine of accession?

Answer 40

Ownership of an annexed chattel passes to the real property owner when the chattel cannot be removed from the RP without substantially damaging the RP.

Question 41

When can a tenant remove the following four things from RP without the landlord’s consent:
-> personal property
-> trade fixtures
-> fixtures
-> RP built on the RP

Answer 41

Personal property
-> always

Trade fixtures
-> during the lease and reasonably after
AND
-> as long as they don’t damage the RP

Fixtures
-> never when they’re SO ATTACHED to land that they become part of RP

RP built on the RP
-> never

Question 42

How does the government regulation of land work (zoning)?

Answer 42

Local government’s authority to regulate land use is usually granted by an enabling act; states have mostly delegated to local; federal regulations are generally authorized by Article IV, Section 3 regarding powers over federal lands.

Question 43

What is a void regulation?

Answer 43

Lack of authority’; irrational or arbitrary

A regulation must be rationally related to a legitimate gov. purpose.

Question 44

What are the types of zoning laws?

Answer 44

Based on use (residential, commercial, industrial); development (setbacks, density regulation); special concerns (environmental protection, historic preservation)

Question 45

What are some of the challenges against zoning laws?

Answer 45

Takings Clause

14th amendment (due process and equal protection)

1st amendment (freedom of speech,

Fair Housing Act

Federal Religious Land Use and Institutionalized Persons Act

State constitution and statutes

Question 46

How to deal with existing non-conforming property and zoning laws?

What is an amortization period?

Answer 46

May be “grandfathered” in which allows it to continue the non-conforming use UNTIL
-> the non-conforming use is enlarged, changed, or abandoned (transfer to another doesn’t trigger this)
OR
-> if provided in the zoning-law, the amortization period has passed or the non-conforming use has not been registered

Amortization period
-> time provided for property owner to bring real property into compliance with zoning codes

Question 47

If a party meets compliance with getting a permit under the zoning laws, can it still be denied under the local authority’s discretion?

Answer 47

No.

Question 48

How does “grandfathered” in work?

Answer 48

Being grandfathered in means that the non-compliance may be allowed to continue but this happens only when the party’s non-conforming use has been vested (they have a vested right) prior to the law establishing the non-conforming use.

Vested rights in the non-conforming use happen when:
-> secured any necessary permit from the proper local authority
-> made substantial progress towards achieving the non-conforming use

Question 49

What happens if there is post-ordinance non-conforming property that violates zoning laws?

What must a party do to show variance?

Answer 49

Owner may request special exception permit or administration variance

Party seeking variance must show
-> (1) unusual situation,
-> (2) the variance does not deviate from comprehensive zoning plan,
AND
-> (3) compliance with the zoning ordinary would result in unnecessary hardship

-> may be a variance regarding use (zoning law focuses on usage of land) or area (doesn’t comply with zoning law focused on area), and they may be subject to conditions in order to allow the variance to stay

Question 50

What are other types of zonings?

Answer 50

Contract zoning (permits a government to K with a developer to allow the developer to build on the land in exchange for promises)

Floating zones (rules regarding use not linked to a particular area, but only apply when property owner applies to have zone apply to their land)

Cluster zoning (consider zoning requirements met as a a whole area, but not met when looking simply at lot by lot)

Planned-unit development (not focused on plots but on entiret, similar to cluster zoning, but tends to include bigger areas and mixed usage such as residential and commercial portions within a given area)

Question 51

What’s a comprehensive plan under zoning laws? What is “spot zoning”?

Answer 51

Generally requires each area to have a zoning committee who comes up with a zoning plan, and who is able to enforce such a plan against developers.

“Spot zoning” is the arbitrary discrimination against or in favor of the owner of rezoned property

Question 52

How does zoning laws relate to covenants?

Answer 52

-> Compliance with a zoning restriction does not protect an owner from a suit for breach of a covenant;
AND
-> Compliance with a covenant does not protect an owner from a zoning violation action.

Question 53

What are the two water rights doctrines?

Answer 53

Riparian Doctrine
Prior-appropriation doctrine

Question 54

What does the riparian doctrine say with regard to water rights?

Answer 54

-> Water belongs to owners of adjoining land to the water
-> reasonable use that DOES NOT UNREASONABLY interfere with down-stream use is permitted
-> Domestic use ALWAYS trumps commercial use
-> water rights cannot be transferred separate and apart from the adjoining land.

Question 55

How does the prior appropriation doctrine work?

Answer 55

-> water rights determined by the priority of beneficial use (“first in time, first in right”)
-> water rights are UNCONNECTED to adjoining land so can be sold and transferred

Question 56

What does prior appropriation mean in terms of water rights?

Answer 56

Water rights are determined by priority of beneficial use (beneficial use includes use for agriculture); subsequent users must not infringe upon the rights of prior users; water rights may be transferred separately from the adjoining land.

Question 57

What are support rights?

Answer 57

The right to have the land supported in its natural state.

Question 58

What are lateral support rights?

When is a landowner who excavates on his land liable for the collapse of adjoining land when that adjoining land is
-> undeveloped
-> developed
-> developed (but the development caused the collapse)

Answer 58

Undeveloped (no improvements to the land)
-> landowner who excavates on their land is STRICTLY LIABLE for the land collapse of the neighboring UNDEVELOPED adjoining land

Developed (land has improvements on it)
-> landowner who excavates on their land is ONLY LIABLE IF the land collapse would have happened in the adjoining land’s UNDEVELOPED state.

Developed, but the developed nature of the land caused the collapse
-> landowner who excavates on their land is only liable for NEGLIGENCE if the land collapses on the developed adjoining land due that land being developed

Question 59

What is a subjacent support right?

Answer 59

After landowner conveys mineral rights to a third party
-> Owner of the mineral rights (third party who received such rights from landowner) is STRICTLY LIABLE for any failure to support the land and to buildings on the land at the time the rights were conveyed to another.
AND
-> Landowner is liable only for negligence for damages to any improvements built after the conveyance of the rights.

Question 60

What are air rights?

Answer 60

Landowner has limited right to reasonable use and enjoyment of the airspace above his land as long as it doesn’t interfere with another’s reasonable use and enjoyment of land.