Easement and Covenants Flashcards
Types of Easements
Explicit Easements
Easement by Prior Use
Easement by Necessity
Easement by Prescription
Easement by Estoppel
Improving Trespasser
i) Relative Hardship (maj): when you want it removed. Form of reasonableness test; evaluate i) good/bad faith mistake ii) extent of damage iii) cost of removal. Remedies vary
ii) Unjust Enrichment (min): either pay FMV or sell the land and structure to trespasser for FMV
Easement
1) limited rights to use (2) another’s land (3) that also runs with the land (is either appurtenant/in gross);
Prescriptive Easements
Same as AP, but Exclusive element not needed (A-CHO)
Case: Green
Easement by Prior Use
i) Both lots were owned together
ii) Open & notorious, and continuous use before separation
iii) Use is reasonably necessary or convenient
Case: Granite Prop
Easement by Estoppel
i) Permission
ii) Foreseeable and reasonable detrimental reliance
iii) Changed position in realiance of permission
iv) Revoking would be unjust
Case: Lobato
Easement by Necessity
i) Two parcels were previously one
ii) One plot became landlocked at severance
Case: Finn
Types of Negative Easements
Never created by implication
i) Light and Air
ii) Lateral support
iii) Artificial streams
iv) By statute; solar panels, historic presevation, etc
Elements of Express Easement
i) Writing (w/o writing, it becomes a license because easement is an interest in land and therefore falls under SoF)
ii) Intent
iii) Notice (actual/inquiry/constructive)
Limitation of In-Gross Easement
i) Can’t transfer (unless commercial use)
ii) Can’t divide (unless exclusive commercial use)
Termination of Easements
i) Changed Conditions – Zero Benefit from Original Goal of Covenant
ii) Relative Hardship – Balance Benefit and Burden
iii) Acquiescence
iv) Abandonment
v) Unclean Hands
vi) Estoppel
vii) Laches
viii) Terms
ix) Merger
x) Agreement
Checklist for Easement Enforcement as future owner
i) Appurtenant or in-gross? (if in-gross, has to be transferrable and divisible)
ii) Use within the scope of language?
iii) Unreasonable burden”?
Elements of Express Covenant
i) In writing (grantor must sign)
ii) Intent (express or assumed)
iii) Notice (actual/inquiry/constructive)
iv) Privity (horizontal and vertical)
v) Touch and Concern
Touch and Concern
Does it affect use and enjoyment of the land, rather than individual owner?
(goes to economic value; effectively policy analysis)
i) Reasonableness test (NJ)
ii) Presumption of enforcability (CA)
3 situations to enforce covenant in planned communities
First lot sold w/o coveant: replace writing with actual notice (hardest to prove)
Middle lot sold w/o covenant: replace writing with constructive and inquiry notice
Last lot sold w/o covenant: invoke estoppel
