Easements Flashcards
Easements
Non-possessory right to use the land of another person.
Affirmative easement
giving an affirmative right for someone else to go on your property
Dominant
estate benefited by the easement
Servient
Estate burdened by the easement
Easement Appurtenant
benefits holder in use of a specific parcel of land
Easement in Gross
Benefits the easement holder in a personal sense, regardless of whether the holder owns any land. No dominant land exists, only servient land exists.
Negative easement
owner of easement/dominant estate having right to tell owner of servient estate not to do something on the servient land.
Granted conveyance
Of easement, owner of the dominant estate transfers rights in the servient land to a new owner including rights to use the easement so that dominant owner themselves can no longer use it.
Reserved conveyance
of easement, the owner of dominant estate transfers right in the servient land but retains rights to the easement so they themselves can continue to use it.
Express Easement
Usually created by grant or reservation.
- Must comply with SOF
- Must be in writing
- be signed by the party to be bound
- created with all relevant formalities.
Easement Implied by Prior Use Elements
1) Severance of title to the land held in common ownership, 2) existing, apparent, and continuous use when severance occurs; and; 3) reasonable necessity for the use at time of severance.
(1) severance of title to the land held in common ownership
common ownership is when one person owned either two parcels of land or one large parcel and a part was sold to another person.
(2) existing, apparent, and continuous use when severance occurs
(a) timing is key, must be at the time of severance
(b) owner must have had existing use of one part of the property to benefit another part of the property in a way that was apparent (visible) and continuous
(3) reasonable necessity for the use at time of severance
(a) timing is key, must be at time of severance, (b) reasonable necessity means “reasonably convenient” to the dominant land
Easement by necessity elements
(1) Severance of title to the land held in common ownership, (2) strict necessity for an easement at the time of severance
Prescriptive easement
(1) Actual use
(2) Open and Notorious
(3) Adverse Use
(4) Continuous Use
(5) Statutory Period
Actual use
Claimant Must show they used the easement as a true owner of easement would.
Open and Notorious Use
Use of easement must be visible and obvious such that the owner of servient land would be aware they are using the land.
Adverse Use
Fact pattern that triggers permission does not satisfy his requirement.
Continuous
Does not have to be 24/7
Statutory Period
Period for which all of the elements must be satisfied
Easement by Estoppel
Claimant must show:
(a) A license, typically for access purpose
(b) licensee’s expenditure of substantial money or labor in good faith reliance, and
(c) licensor’s knowledge or reasonable expectation that reliance will occur
Scope of easements
In general, scope of an easement permits an easement holder to do anything that is reasonably necessary for the full enjoyment of the easement, unless evidence provides otherwise
Transfer of easements checklist
(1) Express or implied?
(2) Appurtenant v. in gross
(3) Does this easement transfer to subsequent purchasers?
Termination of easements
(1) express, (2) merger, (3) prescription, (4) Estoppel, (5) abandonment
Express termination
The parties can include an express limitation on the easement, such as expiration date, term of years, or a condition.
Release: The easement holder may release the easement to the servient owner by executing and delivering a writing that complies with the SOF.
Merger
If one person obtains title to both the easement and the servient land, the easement terminates under the doctrine of merger.
An easement cannot be terminated by merger if there are any other future interests in the dominant or servient estate. Instead, use of the easement is suspended until the future-interest holder becomes entitled to possession.
Prescription
The servient landowner may terminate an easement by prescription based on the same elements of easement by prescription, except servient owner must substantially interfere with the holder’s use of the easement.
Estoppel
An easement ends if the servient owner substantially changes his position in reasonable reliance on the holder’s statement that the easement will not be used in the future.
2 elements: (1) the easement holder says they’re not using the easement anymore, (2) servient owner substantially relies on statement
Abandonment
Abandonment depends on the easement holder’s intent. Abandonment of an easement is established if the holder (a) stops using the easement for a long period and (b) takes other actions that clearly show intent to relinquish the easement.
Covenant
A covenant is an agreement among owners that a parcel or multiple parcels of land will be used in a certain way.
Difference between real covenant and equitable servitude
Real Covenants - may seek damages as remedy
Equitable Servitudes - may seek injunction as remedy
Negative covenants
Limitations on land satisfy touch and concern requirements
Real covenant
A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors.
Real covenants requirements
does the burden run with the land?
(A) SOF
(B) Intent
(C) T&C
(D) Notice - only for burden, not benefit
(E) Horizontal Privity
(F) Vertical Privity
Equitable Servitude
A covenant (promise) that, regardless of whether it runs with the land at law, equity will enforce against the successors of the burdened land unless the successors is a bonafide purchaser (a subsequent purchaser for value without notice of the covenant
Equitable Servitude Reqs - For Burden and Benefit to Run with the Land
(1) SOF
(2) Intent
(3) T&C
(4) Notice
SOF
covenant must be in a document that satisfies SOF
Intent
OG parties must intend to bind their successors to the land (express in written or inferred from circumstances)
T&C
Covenant must touch and concern the land. It must relate to the enjoyment, occupation, or use of the land.
Any limitation on land will generally satisfy this element.
Notice
Promisor’s successor must have notice of the covenant by:
Actual notice: stated in the deed or seller/landlord told them
Record notice: recorded in county records
Inquiry notice: visible/apparent, so purchaser should have asked
Horizontal Privity (“HP”) (only for burden not benefit)
Requires the OG parties to the covenant to have shared some interest in the land, independent of the covenant
VP: BURDEN AND BENEFIT
Requires, for the burden to run, the successor to the land receive the entire estate held by the original promisor.
OG promisor had fee simple absolute and granted to successor a Term of years for 10 years (THIS IS NOT ENTIRE ESTATE)
Requires, for the benefit to run, the successor to the land receive either the entire estate or a smaller estate held by the original promisee.
Common Plan rule for subdivisions
Covenant must be in a document that satisfies the SOF or implied from a common plan where a developer imposed uniform restrictions on a subdivision in which all lots are burdened by restrictions even if they do not appear in the chain of title to every lot (i.e., limit to residential use based on sales, literature, statements by developer, and percentage of deeds with restrictions.
Case for Notice
Gambrell v. Nivens - good example of actual notice because real estate agent told them.
Conservation easement
Type of negative easement - an express easement that restricts the development and use of the servient land in order to preserve open space, farmland, historical sites, or wild and undeveloped land.
Marketable title
is title to real property that is reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. It does not need to be “perfect” title, but the title must be free from questions that might present an unreasonable risk of litigation.
Marketable title cont.
is an implied covenant and implied condition in a purchase contract. If title is unmarketable, then buyer can rescind the purchase K. Unmarketable title only allows buyer to rescind, not seller.
What renders title unmarketable?
(1) problems with title to real property, (2) risk of litigation, (3) must be a substantial problem
Title not unmarketable
(1) if parties agree to terms, (2) physical defects
(1) problems with title to real property
(1) less property interest than identified in purchase contract (i.e. selling a FSA when you only have an LE), (2) subject to an encumbrance (even if recorded, unless there is K language)
(2) risk of litigation
(1) uncertainty regarding title and (2) violation of law (i.e. violation of a zoning ordinance), (3) violation of private covenant (even if wouldn’t otherwise make title unmarketable)
Examples of not unmarketable if parties agree to terms
(1) purchase K says “no promises re: marketable title,” (2) purchase K explicitly lists the encumbrance or potential litigation, (3) zoning restrictions - unless violated, (4) some jdx: visible encumbrance, and (5) physical defects.
Timing issues: Marketable title
In general, if buyer discovers a problem with title during the “executory period” (after the purchase K is signed but before closing), then seller has until closing to fix the problem with title.
If the purchase K does not have a “time is of the essence clause
then the seller still has a reasonable time to cure after closing date (often 1-2 months is considered reasonable)
If the purchase K has a time is of the essence clause
then seller must provide marketable title at closing - no reasonable time to cure
If it’s obvious that the problem can’t be cured prior to closing
then the buyer can rescind based on unmarketable title prior to the closing (i.e. one story house can’t become two story in one week).
Disclosure Requirement
In general, a seller has a duty to disclose if (1) the defect is known to the seller or reasonably should have known, (2) not known or not readily discoverable by a buyer exercising due care (latent defects), and (3) the defect materially impacts the value of the K. Every jdx prohibits intentional misrepresentation.
As-Is Clauses
Sellers sometimes attempt to avoid liability for property defects by inserting exculpatory “as is” clauses (waivers) in purchase Ks
An “as-is” clause in purchase K
If intentional misrepresentation: the as is clause is not enforceable
Residential: Jdx split on whether enforceable or not enforceable (and so require disclosure notwithstanding as-is clause”
Commercial: usually enforceable
If exculpatory “as is” clause identifies and disclaims liability for specific types of defects (i.e. seller is not liable for leaks in the roof), likely to be upheld.
Executory period (after purchase K is signed) - Equitable Conversion
Under the equitable conversion doctrine, the purchase K “converts” the legal right to property from Seller to Buyer. The Buyer is the equitable owner of the land until closing unless the K provides otherwise.
Buyer’s Breach
Justifies seller’s recission and other remedies
Seller’s Breach
(justifies Buyer’s rescission and other remedies)
Buyer’s Remedy (performance)
Specific performance when money damages are inadequate.
Seller’s Remedy (performance)
Specific performance when money damages are inadequate.
Situations where money damages are adequate - restitution damages
back to original position (i.e. If S breaches, S must return B’s deposit)
Situation where money damages are adequate - reliance (incidental) damages
Expenses from reliance on the K (i.e. S must reimburse B’s inspection costs)
Situation where money damages are adequate - consequential damages
Foreseeable damages to non-breaching property if reasonably certain (i.e. B’s lost profits from the inability to run business on the subject property)
Fact pattern will tell us they either have a business or that they somehow lost profits as a result of the sales K.
Situation where money damages are adequate - liquidated damages
K provision specifying damages for breach in advance enforceable only if: difficult to determine damages in advance, and when signed purchase K, reasonable estimate (courts usually ignore the first element and focus on second).
Situation where money damages are adequate - expectation damages
difference between K price and fair market value on date of breach. Exception in some jdx: if good faith unintentional breach of warranty of marketable title, expectation damages not available.
General Warranty Deed
Grantor warrants title against all the defects, whether they arose before or after they obtained title.
Special Warranty Deed
Grantor warrants title against all defects that arose after they obtained title.
Quitclaim Deed
Grantor makes no warranties about title, so the grant he receives, only what the grantor has, if anything.
Delivery of Deed:
Grantor’s manifest intent to transfer an immediate property interest to the grantee. Grantee’s acceptance is usually presumed.
Present Covenant - Seisin
This warrants that grantor owns property being sold.
Present Covenant - Right to Convey
Grantor G is authorized to sell the land
If you see breach of covenant of seisin, also breach of covenant of right to convey.
Covenant against encumbrances
Encumbrances include easements, covenants, equitable servitudes, mortgages on the property, or other liens on the property like unpaid tax on it.
Future covenant - covenant of warranty
Promise to defend title in litigation so if there’s the possibility of litigation, is the covenant of warranty breached? NO, there needs to be an actual complaint filed in order for this covenant to be breached.
Future covenant - covenant of quiet enjoyment
General promise that title is clear
This overlaps a lot with covenant of warranty except here, let’s say there’s an interference with the property (no litigation here) but there’s interference.
Future Covenant - covenant of further assurances (RARE)
Promise to correct title problems like a mistake in a deed
Race Statute
Under a pure race statute, whoever records first wins. Actual notice is irrelevant.
Notice Statute
Under a notice statute, a subsequent BFP (i.e., a purchaser who gives valuable consideration and has no notice of the prior instrument) prevails over a prior grantee who failed to record.
Race-Notice Statute
Under a race-notice statute, a subsequent BFP is protected only if she records before the prior grantee.
