Disputes About the Use of Land

Question 1

What is an easement?

Answer 1

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

Question 2

What is an express easement?

Answer 2

Affirmatively created by parties in writing that satisfies requirements for a deed; by grant or by reservation.

Question 3

What is an implied easement out of necessity?

Answer 3

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 4

What Is an implied easement of implication?

Answer 4

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

Question 5

What is a prescription (aka easement by prescription)?

Answer 5

Easement gained when use is:

1. Continuous ,
2. Actual,
3. Open, and
4. Hostile for statutory period (e.g. 10 (may states), 15 or 20 years)

Question 6

What is an estoppel easement?

Answer 6

good faith, reasonable, detrimental reliance on permission by servient estate older, create an easement by estoppel to prevent unjust enrichment

Question 7

What is a negative easement?

Answer 7

prevents owner from using land in specific ways, must be expressly created by writing signed by grantor, and usually only recognized for light/air/support/stream water from artificial flow

Question 8

What is an easement appurtenant?

Answer 8

Benefit/burden transferred automatically with transfer of estate

Question 9

What is an easement in gross?

Answer 9

Benefits person, not estate
-> burden transferred automatically with transfer of servient estate
-> benefit transferable if commercial or parties intended it
-> benefit is meant for a person so doesn’t transfer with beneficiary’s estate when the beneficiary gets rid of estate

Question 10

What is the scope of an easement?

Answer 10

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

Question 11

How to terminate an easement?

Answer 11

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 (statements of intent without conduct and mere non-use insufficient to extinguish easement right)

Destruction, condemnation, prescription, estoppel, end of necessity (easement by necessity)

Unrecorded express easement not enforceable against BFP (bona fide purchaser) of servient estate

Question 12

What is the duty to maintain an easement?

Answer 12

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 13

What to do with profits related to and easement (also known as a “profit a prendre”)?

Answer 13

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

Question 14

How do licenses work?

Answer 14

Privilege to enter another’s land

Freely revocable unless coupled with an interest or estoppel (may result in easement by estoppel)

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

Invalid oral easements may create license

Question 15

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

Answer 15

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
   -> negative covenants -> run with the land if they restrict the owner’s use or enjoyment of the land
   -> affirmative convenais - run with the land if they require the owner to do something related to the use and enjoyment of the land
4. Notice to future purchasers in order for those purcahsers 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.
   —-> Horizontal privity refers to privity of estate, where the estate and covenant are contained in the same instrument (e.g. the deed).
   —-> 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 16

What are equitable servitudes?

Answer 16

Operates like a real covenant but easier requirements to meet:

1. Must be in writing (except for implied reciprocal servitudes)
2. Requires 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, or inquiry)

Question 17

What is implied reciprocal servitude?

Answer 17

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 18

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

Answer 18

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

Question 19

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

Answer 19

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 20

What are common-interest ownership communities?

Answer 20

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 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 21

What is a fixture?

Answer 21

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

Question 22

What is a trade fixture?

Answer 22

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

Question 23

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

Answer 23

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 24

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

Answer 24

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 25

What is a void regulation?

Answer 25

Lack of authority’; irrational or arbitrary

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

Question 26

What are the types of zoning laws?

Answer 26

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

Question 27

What are some of the challenges against zoning laws?

Answer 27

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 28

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

Answer 28

May be “grandfathered” in, possibly subject to amortization period (time provided for property owner to bring real property into compliance with zoning codes); non-conformity cannot be expanded; can increase frequency or upgrade means of use if does not constitute a substantial change; can be transferred

Question 29

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

Answer 29

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 30

What are other types of zonings?

Answer 30

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 31

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

Answer 31

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 32

How does zoning laws relate to covenants?

Answer 32

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

Question 33

What are riparian rights?

Answer 33

Water belongs to those who own land bordering the watercourse; owners may make any reasonable use of the water; water rights cannot be transferred separate and apart from the adjoining land.

Question 34

What does prior appropriation mean in terms of water rights?

Answer 34

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 35

What are support rights?

Answer 35

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

Question 36

What are lateral support rights?

Answer 36

Undeveloped (no improvements) - landowner who excavates on his land is strictly liable for damage to undeveloped adjoining land.

Improvements (land has been developed on) - landowner who excavates on his land is strictly liable ONLY IF adjoining land would have collapsed in its undeveloped state.

If the improvements from the non-excavating landowner contributed to the collapse, then the landowner who excavates on his land is only liable if he is negligent.

Question 37

What is a subjacent support right?

Answer 37

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.

Landowner is liable only for negligence for damages to any improvements built after the conveyance of the rights.

Question 38

What are air rights?

Answer 38

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.