Disputes About the Use of Land

Question 1

Easements - Basics

Answer 1

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.

Question 2

Easements - Creation - Express

Answer 2

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

Question 3

Easements - Creation - Implied

Answer 3

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 -

1. Easement by Necessity
2. Easement by Implication
3. Easement by Presecription
4. Easement by Estoppel

Question 4

Easements - Creation - Necessity

Answer 4

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.

Question 5

Easements - Creation - Implication

Answer 5

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.

Question 6

Easements - Creation - Prescription

Answer 6

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).

Question 7

Easement - Creation - Estoppel

Answer 7

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.

Question 8

Easement - Scope - Express

Answer 8

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

Question 9

Easements - Scope - Implied

Answer 9

Scope - determed by nature of the prior use or necessity

Question 10

Easements - Duty to Maintain

Answer 10

General - owner of easement has duty to maintain the property subject to the easement unless the parties agreed otherwise

Question 11

Easements - Termination

Answer 11

Types -

1. Release; 2. Merger; 3. Abandonment; 4. Prescription; 5. Sale to a bona fide purchaser; 6. Estoppel; 7. End of Necessity
2. Release - easement terminated holder of easement expressly releases it in writing (subject to SoF)
3. Merger - easement terminated if owner of easement acquires fee title to the underlying estates therefore easement merges into the title
4. 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)
5. Prescription - holder fials to protect against a trespasser for a statutory period
6. Sale to a bona fide purchaser
7. Estoppel - easement terminates if servient owner changes position to his detriment in reliance on statements or conduct that the easement’s holder abandoned it.
8. End of Necessity - if reason for necessity ends, then easement by necessity ends.

Question 12

Easements - Not Easements

Answer 12

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

Question 13

Real Covenants - General

Answer 13

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:

1. Writing
2. Intent
3. Touch + Concern
4. Notice (burden only)
5. Privity

Question 14

Real Covenants - 1. Writing

Answer 14

General - must be in writing (subjec to SoF)

Note - can be recorded and therefore subject to recording acts

Question 15

Real Covenants - 2. Intent

Answer 15

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”

Question 16

Real Covenants - 3. Touch + Concern

Answer 16

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:

1. Negative Covenant - restriction on use will usually touch and concern unless promise is unenforceable
2. Affirmative Covenant - e.g., covenant to pay money (homeowner association fees) does touch and concern

Question 17

Real Covenants - 4. Notice

Answer 17

General - actual or constructive notice is required

Question 18

Real Covenants - 5. Privity

Answer 18

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

Question 19

Real Covenants - Remedy

Answer 19

Breach of a real covenant is damages.

Question 20

Real Covenants - Example

Answer 20

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.

Question 21

Equitable Servitudes - General

Answer 21

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:

1. promise is in writing (unless implied reciprocal servitude)
2. promise was intended to run with the land
3. promise must touch and concern the land
4. successor has notice (actual, record, or inquiry)

Remedy - Injuctive relief

Question 22

Equitable Servitude - Implied Reciprocal Servitude 1

Answer 22

Rule - successor is bound to implied reciprocal servitude if:

1. there was an intent to create a covenant on all plots in the subdivision
2. the promise is reciprocal (benefits and burdens each and every parcel)
3. promise is negative (restricts use)
4. successor is on notice (actual, constructive, or inquiry)
5. promise is part of a common plan or scheme

Question 23

Equitable Servitude - Implied - Common Plan

Answer 23

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

Question 24

Equitable Servitude - Implied - Termination

Answer 24

General - same as easements

1. Release - easement terminated holder of easement expressly releases it in writing (subject to SoF)
2. Merger - easement terminated if owner of easement acquires fee title to the underlying estates therefore easement merges into the title
3. 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)
4. Prescription - holder fials to protect against a trespasser for a statutory period
5. Sale to a bona fide purchaser
6. Estoppel - easement terminates if servient owner changes position to his detriment in reliance on statements or conduct that the easement’s holder abandoned it.
7. End of Necessity - if reason for necessity ends, then easement by necessity ends.

Question 25

Equitable Servitude - Implied - Changes Circumstances Doctrine

Answer 25

Rule - restriction no longer applicable if restriction no longer makes sense due to drastic change in surrong area since the restriction was put in place

Critical Question - does property subject to the restriction still retain some benefit from the restriction?

Question 26

Equitable Servitude - Implied - Equitable Defenses

Answer 26

may use equitable defenses (unclean hands, bad faith, laches, unreasonable delay)

Question 27

Water Rights

Answer 27

Two basic approaches:

1. Doctrine of Riparian Rights - landowners who border a waterway own the rights to the waterway but must reasonably share use of the water lest they are liable to another for interference with the other’s use.

OHIO - riparian right state - person owning land along a stream may take whatever amount of water necessary for domestic use; other use must be reasonble

2. Prior Appropriation -
   a. First in Time, First in Right - first person to use the water, regardless of location, has the rights to the water
   b. Beneficial Use - person to put water to a beneficial and productive use has right to water.
   c. Groundwater - surface owner has has right to make reasonable use of groundwater.

OHIO - landowner has property interest in groundwater beneath land

Government - gov. interference constitutes a compensable taking

Use - reasonble use standard - may withdraw for beneficial purpose unless 1) casues harm to neighboring land by lowering water table; 2) exceeds reasonble share of natural supply; 3) has substantial influence on a watercourse

Question 28

Support Rights - Lateral Support Rights

Answer 28

General - neighboring landowner cannot excavate so as to cause a cave in (subsidence) on a neighbor’s land

Negligence Liability - when actions caused subsidence and neighbor’s surface buildings did contribute to the subsidence

Strict Liability - when actions caused subsidence and neighbor’s surface buildings did not contribute to the subsidence

Question 29

Support Rights - Subjacent Support

Answer 29

General - right of surface landowner not to have their land subside from activities of the owner of underground rights

Negligence Liability - for owner of mineral rights for damage to any building built after the rights were created

Strict Liability - for owner of mineral rights for any failure to support the land and bulidings on it that existed when the right were created

OHIO - if owner digs to depth greater than 9 feet and causes damage to building, the digger is liable for whole amount of damages

Question 30

Zoning

Answer 30

General - zoning laws enacted for protection and safety of community by federal and state constitutions; goal is to separate incompatible uses of land

Variance - owner may request a variance from zoning ordinance ifo wner can demonstrate 1) that the ordinance imposes a unique hardship and 2) that the variance would not be contrary to the public welfare

Non-Conforming Use - use that existed before zoning ordinance existed is usually permitted to continue but prhibited from expanding is non-conforming use

Vested Rights - if developer in the middle of building project when zoning ordinance is changed, then doctrine of vested rights controls and developer may continue so long as it was started in good faith.

Question 31

Eminent Domain

Answer 31

Rule - federal or state government may take property for public use (public purpose) to which they then recieve title to the property and pays the landowner just compensation

Regulatory Taking - government regulates a pience of property and the regulation reduces its economic value to which the government must pay just compensation

Question 32

Nuisance

Answer 32

Private Nuisance - substantial and unreasonable interference with another individual’s use or enjoyment of his property

Substantial - one that would be offensive, inconvenient, or annoying to an average person in the community

Unreasonable - the injury outweighs the usefulness ofthe defendant’s actions

Public Nuisance - unreasonable interference with the helth, safety, or property rights of the community

Remedy - damages, or injunctive relief if money damages are inadequate or unavailable

Private Party??