Disputes About Use of Land

Question 1

Express easement requirements

Answer 1

Affirmatively created by parties in writing. Subject to SoF.

Can be created by a grant or a reservation (when a grantor conveys land but reserves an easement right in the land for grantor’s benefit).

NEGATIVE easements MUST be express.

Question 2

Easement by necessity

Answer 2

Dominant/servient estates must have been under common ownership.

Necessity must arise when property severed and estates created.

Property is virtually useless without easement across adjacent property.

Question 2

Easement in gross

Answer 2

Benefits a person, not the land.

Burden transferred automatically with transfer of servient estate.

Benefit transferable if commercial or parties intended it.

Question 2

Easement by implication

Answer 2

Dominant/servient estates must have been under common ownership.

A quasi-easement must have existed at severance (owner used the land as if there’s an easement on it).

Use must be continuous and apparent at the time of severance.

Easement must be reasonably necessary to dominant estate’s use/enjoyment.

Question 2

Easement by estoppel

Answer 2

Good faith, reasonable, detrimental reliance on permission by servient estate holder.

Created to prevent unjust enrichment.

Question 2

Easement by prescription

Answer 2

Continuous, actual, open, and hostile for statutory period.

Question 2

Negative easement

Answer 2

Prevents owner from using land in specific ways.

Must be expressly created in writing signed by grantor.

Question 2

Easement appurtenant

Answer 2

Benefit/burden automatically transfers with transfer of estate.

Question 2

Termination methods of easements

Answer 2

(1) Release - by writing, signed
(2) Merger - easement merges when owner of dominant/servient estate acquires title to the other estate
(3) Severance - severed by attempt to convey appurtenant easement separate from land it benefits
(4) Abandonment - owner affirmatively acts to show clear intent to abandon
(5) Destruction, condemnation, prescription, estoppel, end of necessity.

Unrecorded express easement not enforceable against BFP of servient estate.

Question 3

Easement owner duty to maintain

Answer 3

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 4

Profits

Answer 4

Entitles holder to enter servient land and take from it the soil or some substance of the soil such as minerals, timber, and oil.

Cannot be created by necessity.

Question 5

Licenses

Answer 5

Privilege to enter another’s land. Freely revocable.

Does not need to satisfy SoF.

Question 6

Real covenant requirements

Answer 6

Must comply with SoF, be in writing.

Question 7

Requirements for covenant to run

Answer 7

(1) Writing
(2) Intent to run
(3) Touch and concern
(4) Notice (of a burden only)
(5) Privity

Question 8

“Touch and concern”

Answer 8

Benefit/burden must affect both parties as owners of the land.

Negative covenant: runs with the land if they restrict the owner’s use or enjoyment of the land.

Affirmative covenant: runs with the land if they require the owner to do something related to the use/enjoyment of the land.

Question 9

Horizontal privity

Answer 9

Required for a burden to run.

Parties are in horizontal privity if the estate and covenant are contained in the same instrument (e.g., the deed).

Question 10

Vertical privity

Answer 10

To run a burden: need STRICT vertical privity. Successor takes the original party’s entire interest.

To run a benefit: need RELAXED vertical privity. Successor need only take an interest that is carved out of the original party’s estate.

Question 11

Modern privity trend

Answer 11

No privity required.

Affirmative covenants run to successors of the same duration as the estate of the original party.

Negative covenants are analyzed similar to easements.

Question 12

Equitable servitude

Answer 12

Operates like a covenant but with equitable remedies, not damages.

To bind a successor:
(1) Writing
(2) Intent to run
(3) Touch and concern
(4) Successor has notice

Question 13

Breach of covenant remedy

Answer 13

Money damages.

Question 14

Implied reciprocal servitude creation

Answer 14

(1) Intent to create servitude on all plots (no writing necessary)
(2) Promises must be reciprocal (benefits and burdens each parcel equally)
(3) Must be negative rather than positive
(4) Successor must be on notice of the restriction (at least inquiry notice)
(5) Must be a common plan or scheme

Question 15

Defenses to enforcement of covenants/equitable servitudes

Answer 15

(1) Changed circumstances
(2) Laches
(3) Unclean hands
(4) Acquiescence
(5) Estoppel

Question 16

Transfer/termination of real covenants

Answer 16

Rights and obligations are transferred along with real property itself.

Notice generally required to enforce them against a BFP.

Terminated upon release, merger, condemnation, abandonment, estoppel.

Question 16

Common-interest ownership communities

Answer 16

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

Question 17

Powers of community (HOAs)

Answer 17

Levy assessments, manage/acquire/improve common property, adopt rules governing use of property, enforce governing documents and rules.

Question 18

Fixtures

Answer 18

Chattel attached to real property such that it is treated as part of the property when determining its ownership.

Trade fixture - used in a trade or business attached to real property (e.g., restaurant stove).

Question 19

Structures built on real property and items incorporated into structure

Answer 19

Become part of realty, but can be removed if:
(1) Seller reserves right to remove fixture in sale of K, or
(2) Leased property can be restored to former condition without damage in reasonable time.

Question 20

Zoning restrictions relationships with covenants

Answer 20

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.

Question 21

Riparian rights

Answer 21

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 22

Prior appropriation of water rights

Answer 22

Water rights are determined by priority of beneficial use.

Subsequent users must not infringe upon the rights of prior users.

Question 23

Lateral support rights for undeveloped land

Answer 23

Landowner who excavates on his land is strictly liable for damage to undeveloped adjoining land.

Question 24

Lateral support rights for land with improvements

Answer 24

Landowner who excavates on his land is strictly liable only if adjoining land would have collapsed in its undeveloped state.

Question 25

Lateral support rights if neighbor’s improvements contribute to collapse

Answer 25

Landowner who excavates on his land is only liable if he is negligent.

Question 26

Subjacent support

Answer 26

Owner of the mineral rights is strictly liable for any failure to support the land and any buildings on the land at the time the rights were conveyed.

Question 27

Air rights

Answer 27

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