Disputes about use of land

Question 1

Easements

Answer 1

5 Types:

1. Express—affirmatively created by parties in writing that satisfies SoF
2. Implied:
   - Necessity—created when property is virtually useless without benefit of easement across adjacent property, dominant/servient estates must be under common ownership and necessity must arise when estate severed
   - Implication—if easement previously used on servient estate by earlier owner, court implies intent for easement to continue if prior use was continuous, apparent, and reasonably necessary to dominant estate’s use/enjoyment, the estates were once under common ownership, and a quasi-easement existed at severance
3. Prescription—continuous, actual, open and hostile for statutory period (20 years at CL)
4. Estoppel—good faith, reasonable, detrimental reliance on permission by servient estate holder, issued to prevent unjust enrichment
5. Negative—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

Transfer
• Easement appurtenant—benefit transferred automatically with servient estate
• Easement in gross—benefits individual/legal entity, not RP, and usually commercial easements freely transferable to third party

Scope—court looks to reasonableness of use and intent of original parties and ambiguities resolved in favor of grantee

Termination
• Release—by writing that satisfies SoF
• Merger—merges into title when owner of easement acquires underlying estate
• 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 and written easement—not recorded against servient estate against BFP

Duty to maintain—easement owner has right and duty to maintain the easement; may seek contribution from co-owners of the easement after notice and opportunity to participate in repair decisions

Profits—entitles holder to enter servient land and take from it the soil or some substance of the soil such as mineral, timber, and oil

Licenses
• Privilege to enter another’s land
• Freely revocable unless estoppel
• Does not need to satisfy SoF
• Invalid oral easements create revocable license

Question 2

Covenants running with the land

Answer 2

Real covenants
• Writing—must comply with SoF unless implied reciprocal servitude
• Intent—rights/duties to run with land through explicit language or implied from totality of circumstances
• Touch/concern—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 covenants—run with the land if they require the owner to do
something related to the use and enjoyment of the land.
• Notice (burden only)—must be constructive or actual
• Privity. Horizontal privity—(burden only) when estate and covenant in same instrument. Vertical privity—(covenant based on mutual/successive interest in land burdened/benefited by covenant). Modern trend—no privity required; affirmative covenants run to successors of an estate of the same duration as the estate of the original party; negative covenants are analyzed similarly to easements

Equitable servitudes
• Intent for restriction to be enforceable by and against successors
• Touch/concern (no privity required)
• Notice (actual, record, or inquiry)

Transfer and termination of covenants and equitable servitudes

Implied reciprocal servitude
• Intent to create servitude on all plots (common scheme)
• Negative servitude (promise to refrain from doing something)
• Notice (actual, record, or inquiry) by party against whom enforcement is sought

Transfer and termination—these real property rights and obligations are transferred along with the real property itself. Notice is generally required to enforce them against a BFP. They are terminated upon release, merger, abandonment, estoppel, condemnation

Common-interest ownership communities 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 community—levy assessments (for general upkeep, repairs, improvements); manage, acquire, improve common property; adopt rules governing use of property (must not unreasonably interfere with owners’ rights); enforce governing documents and rules. Community has corresponding duties

Question 3

Fixtures

Answer 3

Structures built on RP and items incorporated into structure become part of realty, but can be removed if:
• Seller reserves right to remove fixture upon sale K
• Leased property can be restored to former condition without damage in reasonable time

Question 4

Zoning (gov’t regulation of land)

Answer 4

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, Sec. 3 power over federal lands

1. Void regulations—lack of authority; irrational or arbitrary (must be rationally related to a legitimate gov. purpose); referendum zoning
2. Types—based on use (residential, commercial, industrial); development (setbacks, density regulation); special concerns (environmental protection, historic preservation)
3. Challenges—based on Takings Clause, 14th A. Sub. Due Process and Eq. Protection, 1st
   A. Freedom of Speech, Fed. Fair Housing Act, Federal Religious Land Use and
   Institutionalized Persons Act, state constitution and statutes
4. Existing non-conforming property—may be “grandfathered” in, possibly subj. to
   amortization period; non-conformity cannot be expanded; can be transferred
5. Post-ordinance non-conforming property—owner may request special exception
   permit or administrative variance
   • Party seeking variance must show unique unnecessary hardship, that hardship not selfinduced,
   and that variance would not result in substantial harm
   • May be use or area variances, and they may be subject to conditions
6. Other types of zoning—contract (permits in exchange for promises); floating (rules
   regarding use not linked to a particular area); cluster (consider zoning requirements as a
   whole, not lot by lot); planned unit development (not focused on plots, but on entirety)
7. Comprehensive plan—generally required and development must adhere to plan
8. Relationship to covenants—covenants can be more restrictive than zoning requirements

Question 5

Other prop rights: air, water, support

Answer 5

1. Theories
   • 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—water rights are determined by priority of beneficial use;
   subsequent users must not infringe upon the rights of prior users; water rights may be
   transferred separately from the adjoining land
2. Support rights—the right to have the land supported in its natural state
   • Lateral support
   o Undeveloped (i.e., no improvements)—landowner who excavates on his land is
   strictly liable for damage to undeveloped adjoining land
   o Improvements—landowner who excavates on his land is strictly liable only if
   adjoining land would have collapsed in its undeveloped state
   o 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
3. 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 and
   enjoyment of land