Disputes About Use of Land Flashcards
Express easement requirements
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.
Easement by necessity
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.
Easement in gross
Benefits a person, not the land.
Burden transferred automatically with transfer of servient estate.
Benefit transferable if commercial or parties intended it.
Easement by implication
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.
Easement by estoppel
Good faith, reasonable, detrimental reliance on permission by servient estate holder.
Created to prevent unjust enrichment.
Easement by prescription
Continuous, actual, open, and hostile for statutory period.
Negative easement
Prevents owner from using land in specific ways.
Must be expressly created in writing signed by grantor.
Easement appurtenant
Benefit/burden automatically transfers with transfer of estate.
Termination methods of easements
(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.
Easement owner duty to maintain
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.
Profits
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.
Licenses
Privilege to enter another’s land. Freely revocable.
Does not need to satisfy SoF.
Real covenant requirements
Must comply with SoF, be in writing.
Requirements for covenant to run
(1) Writing
(2) Intent to run
(3) Touch and concern
(4) Notice (of a burden only)
(5) Privity
“Touch and concern”
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.
Horizontal privity
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).
Vertical privity
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.
Modern privity trend
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.
Equitable servitude
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
Breach of covenant remedy
Money damages.
Implied reciprocal servitude creation
(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
Defenses to enforcement of covenants/equitable servitudes
(1) Changed circumstances
(2) Laches
(3) Unclean hands
(4) Acquiescence
(5) Estoppel
Transfer/termination of real covenants
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.
Common-interest ownership communities
Individually owned units are burdened by a covenant to pay an association that provides services and enforces other covenants.
Powers of community (HOAs)
Levy assessments, manage/acquire/improve common property, adopt rules governing use of property, enforce governing documents and rules.
Fixtures
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).
Structures built on real property and items incorporated into structure
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.
Zoning restrictions relationships with covenants
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.
Riparian rights
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.
Prior appropriation of water rights
Water rights are determined by priority of beneficial use.
Subsequent users must not infringe upon the rights of prior users.
Lateral support rights for undeveloped land
Landowner who excavates on his land is strictly liable for damage to undeveloped adjoining land.
Lateral support rights for land with improvements
Landowner who excavates on his land is strictly liable only if adjoining land would have collapsed in its undeveloped state.
Lateral support rights if neighbor’s improvements contribute to collapse
Landowner who excavates on his land is only liable if he is negligent.
Subjacent support
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.
Air rights
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.
