Disputes About the Use of Land Flashcards
Easements - Basics
General - right by one person to make sure of another’s land
Servient Estate - land burdened by easement
Dominant Estate - land benefited by easement
Affirmative Easement - gives holder right to do something on someone else’s property
Negative Easement - gives holder right to prevent someone from doing something on their land
Easement Appurtenant - tied to the land
Transferrable? - transferred with the land to which it relates. Consequently, the benefit is transferred automatically with the transfer of the dominant estate, and the burden likewise is transferred automatically with the transfer of the servient estate.
Easement in Gross - benefits the holder personally (no dominat estate exists, e.g., right to use neighbors pool)
Transferrable? - look to the intent of the parties to determine whether the parties intended only the holder of the easement in gross to enjoy the right, in which case it is not transferable, or whether the parties intended the holder to be able to transfer it.
Easements - Creation - Express
General - two ways: express or implied
Express Easement - subject to statute of frauds and must be in writing and can be created by a grant.
Easement by Reservation - grantor conveys land but reserves an easement rightin the land for the grantor’s use and benefit
Note - express easements subject to recording statutes
Note 2 - negative easements must be express, cannot be by implication
Easements - Creation - Implied
General - two ways: express or implied
Other Names - easement by operation of law; non-express easements
General - arise out of facutal circumstances and are not subject to the statute of frauds and are not subject to recroding statutes unless the subsequent purchaser had notice of the easement
Types -
- Easement by Necessity
- Easement by Implication
- Easement by Presecription
- Easement by Estoppel
Easements - Creation - Necessity
Rule - can only arise when 1) dominnant and servient estates were owned by one person and 2) necessity arose when the estates were severed into two separate estates and at that severance, one of the properties became virtually useless without an easement.
Note - “necessity” in the strict sense
End - when no longer necessary
Example: B owns an undeveloped parcel of land, which B subdivides into two lots. B sells one of the lots to A and retains the other lot for himself. The only access to a public road from the lot purchased by A is through the lot retained by B. Even though the deed makes no mention of an easement across B’s lot and there has not been a prior path from A’s lot across B’s lot to the public road, A has an easement by necessity across B’s lot to the road.
Easements - Creation - Implication
Rule - arises when
1) a lrage estate owned by one owner and
2) before division, the owner of the large tract uses the land as if there’s an easement on it (quasi-easement),
3) use is continuous and apparant at the time of severance and
4) use must be reasoanbly necessary to the dominant estate’s use and enjoyment.
Easements - Creation - Prescription
Rule - may arise when
1) use continuous for statutory period
2) use was open and notorious, and
3) use was hostile
Note - same as AP except exclusivity not needed (such as a public easement to access a beach).
Easement - Creation - Estoppel
Rule - arises when
1) there is a permissive use of the land and
2) the second neighbor relies on the first neighbor’s promise and
3) the first neighbor withdraws the permission and
4) neighbor relied upon the permission to his detriment
Note - reliance must be reasonable and in good faith
Example: A allows B to use a road on A’s land to gain access to B’s land, and B builds his house with the road being its main access point, improving the road with pavement and foliage. Thereafter, A tells B that he can use the road only if B pays $500; A closes off the road when B refuses. B likely has an easement by estoppel because he relied on the ability to use the road when he built his house, and unjust enrichment may otherwise result.
Easement - Scope - Express
Scope = what can they do
General - determined by the terms of the easement when it was created
Ambiguous - if terms ambiguous, then court considers the intent of the original parties as to the purpose of the easement
Changes in Use - judged under a reasonableness standard; it is presumed parties contemplated current and future use (look to whether expected consequences of permitted contemplated use).
Exceed Scope - if use exceeds scope, then dominant tenant is trespassing
Glom - holder of dominant estate cannot use easement to access property acquired after easement is created
Easements - Scope - Implied
Scope - determed by nature of the prior use or necessity
Easements - Duty to Maintain
General - owner of easement has duty to maintain the property subject to the easement unless the parties agreed otherwise
Easements - Termination
Types -
- Release; 2. Merger; 3. Abandonment; 4. Prescription; 5. Sale to a bona fide purchaser; 6. Estoppel; 7. End of Necessity
- Release - easement terminated holder of easement expressly releases it in writing (subject to SoF)
- Merger - easement terminated if owner of easement acquires fee title to the underlying estates therefore easement merges into the title
- Abandonment - easement terminates if owner acts in an affirmative way that shows clear intent to relinquish the right (non-use + act demonstrating intent to abandon)
- Prescription - holder fials to protect against a trespasser for a statutory period
- Sale to a bona fide purchaser
- Estoppel - easement terminates if servient owner changes position to his detriment in reliance on statements or conduct that the easement’s holder abandoned it.
- End of Necessity - if reason for necessity ends, then easement by necessity ends.
Easements - Not Easements
Profit - right to enter another’s land and remove a specifc natural resource
License - revocable use of another’s land
Note - Easements are not revocable, licenses are
Real Covenants - General
General - promise concerning the use of the land that runs to successors to that promise.
“Runs with the Land” - when agreement binds successor
Benefit of the covenant is the ability to enforce the covenant
Burden of the covenant is being bound by it
Requirements:
- Writing
- Intent
- Touch + Concern
- Notice (burden only)
- Privity
Real Covenants - 1. Writing
General - must be in writing (subjec to SoF)
Note - can be recorded and therefore subject to recording acts
Real Covenants - 2. Intent
General - to bind a successor, the original parties must intend for the covenant to run with the land
Note - look for express language such as “and his heirs and assigns”
Real Covenants - 3. Touch + Concern
General - must touch and concern the land in order to run, i.e.g, the benefit or burden must affect both the promisee and the promisor as owners of the land.
Two Types:
- Negative Covenant - restriction on use will usually touch and concern unless promise is unenforceable
- Affirmative Covenant - e.g., covenant to pay money (homeowner association fees) does touch and concern
Real Covenants - 4. Notice
General - actual or constructive notice is required
Real Covenants - 5. Privity
To run BURDEN to a successor –> original parties req. horizontal privity.
To run BURDEN to a sucessor –> successor req. strict vert privity
To run BENEFIT to a successor –> successor req. relaxed vert. privity
Horizontal Privity - privity of estate where the estate and covenant are contained in the same instrument (i.e., deed)
Hint - look for transfer or property between the original parties that contains a covenant in it
Vertical Privity - Strict - successor takes original party’s entire interest
Vertical Privity - Relaxed - sucessor need only take an interest that is carved out of the original party’s estate
Real Covenants - Remedy
Breach of a real covenant is damages.
Real Covenants - Example
Example 1: Oliver and Caleb have in their deeds to Blackacre and Whiteacre a promise not to build a shed on their properties. Oliver conveys his fee simple interest to Marsha, who plans to build a shed on the property. Can Caleb recover against Marsha? Ask first if you’re running the benefit or the burden and then what kind of vertical privity is needed. Here we’re running the ______________________. To run the burden you need ____________vertical privity. So here, because Marsha took Oliver’s fee simple interest (strict vertical privity) we have enough to run the burden, provided there is horizontal privity.
Example 2: Would there still have been vertical privity if Oliver had conveyed a life estate to Marsha? __________, because she took an interest carved out of
the fee simple interest rather than the whole fee simple interest.
Exam Tip 10: Ask yourself a series of questions ‐ (i) Identify whether you are running the benefit or the burden; (ii) If it is the benefit, you need relaxed vertical privity and you don’t care about horizontal privity; if it is the burden, you need horizontal privity and strict vertical privity.
Equitable Servitudes - General
General - two ways to bind a successor to an original party’s promise (1) real covenant and (2) equitable servitude
Rule - successor is bound if:
- promise is in writing (unless implied reciprocal servitude)
- promise was intended to run with the land
- promise must touch and concern the land
- successor has notice (actual, record, or inquiry)
Remedy - Injuctive relief
Equitable Servitude - Implied Reciprocal Servitude 1
Rule - successor is bound to implied reciprocal servitude if:
- there was an intent to create a covenant on all plots in the subdivision
- the promise is reciprocal (benefits and burdens each and every parcel)
- promise is negative (restricts use)
- successor is on notice (actual, constructive, or inquiry)
- promise is part of a common plan or scheme
Equitable Servitude - Implied - Common Plan
Common Plan - to prove common plan, look for map of community showing scheme that was recorded, marketing or advertising of the community, or oral or written mention that lost are burdened by common resriction
Equitable Servitude - Implied - Termination
General - same as easements
- Release - easement terminated holder of easement expressly releases it in writing (subject to SoF)
- Merger - easement terminated if owner of easement acquires fee title to the underlying estates therefore easement merges into the title
- Abandonment - easement terminates if owner acts in an affirmative way that shows clear intent to relinquish the right (non-use + act demonstrating intent to abandon)
- Prescription - holder fials to protect against a trespasser for a statutory period
- Sale to a bona fide purchaser
- Estoppel - easement terminates if servient owner changes position to his detriment in reliance on statements or conduct that the easement’s holder abandoned it.
- End of Necessity - if reason for necessity ends, then easement by necessity ends.
