Easements Flashcards
What are the five kinds of easeaments?
(1) express easement; (2) implied easement by prior existing use; (3) easement by necessity; (4) Prescriptive easement; (5) easement by estoppel (or irrevocable license)
What is an appurtenant easement?
an easement that benefits the easement holder in using the dominant land as the owner of the dominant land. It is seen as attached to the dominant land. It exists only when there is both dominant and servient land.
What is an easement in gross?
an easement that is not connected to the holder’s use of any particular land; rather it is personal to the holder whether or not he owns any other parcels of land. It is attached to the holder not the land. It only involves servient land.
What is an affirmative easement?
An easement that allows the holder to perform an act on the servient land.
What is a negative easement?
an easement that allows the holder to prevent the servient owner from performing an act on the servient land.
What is a license compared to an easement?
A license is an informal permission that allows the holder to use the land of another for a particular purpose. No interest in the land and can be revoked at any time. Whether a right is a license or an easement turns on the intent of the parties. In Markstein, the court considered the manner in which the right was created, the nature of the right created, the duration of the right the amount of consideration given for the right, and whether there is a reservation of power to revoke the right.
A deed must meet the statute of frauds (T or F)?
True
How does a deed for an easement meet the statute of frauds?
(a) must be in writing, (b) identify the grantor and grantee, (c) contain words manifesting an intention to create an easement, and (d) describe the affected land, and (e) be signed by the grantor.
How is an express easement created?
It arises only with the agreement of the owner whose land is burdened. The other four arise as a matter of law w/o the owner’s agreement.
What are the required elements for an express easement?
(1) an easement that does not give the holder any right to possess the land, just use for a limited purpose; (2) subject to statute of frauds; (3) burdens land that is possessed by another person.
What is an implied easement by prior existing use?
An easement that can arise without an express agreement to create an easement. A court may infer such intent from the presence of an existing use (e.g. powerlines crossing servient land) and imposed an easement by operation of intention to not create an easement, this easement cannot arise.
What are the three required elements for an implied easement by prior existing use?
(1) severance of title to land in common ownership; (2) an existing, apparent and continuous use when severance occurs, and (3) reasonable necessity for the use at time of severance (use was reasonably convenient to the dominant land). (4) elements must be satisfied at time of severance.
What is an easement by necessity?
when a piece of land is landlocked (no access to public road), an easement by necessity arises by operation of law based on the circumstances of the case, without any express agreement. It is an exception to the SoF. Requires an existing use before severance of title; the easement by necessity when title is severed but not prior use.
What are the two required elements of an easement by necessity?
(1) severance of title to land held in common ownership; and (2) strict necessity for the easement at time of severance (requires the parcel to be landlocked with no other access to public roads or utilities). Any route, no matter how impractical, destroys the claim.
What is a prescriptive easement?
The easement version of adverse possession. It proves the easement holder an easement in land owned by another.
What are the required elements for easement by prescription?
(1) actual use as a true holder would use the easement; (2) open and notorious use where it was visible and obvious in such a way that would be aware of the adverse use; (3) adverse use, without permission of owner of servient land; (4) continuous use, use was continuous as a true holder would; (5) statutory period; (6) if no statutory period then we default to 20 years; note AP style tacking works here too.
What is an easement by estoppel (irrevocable license)?
An easement that arises when a licensee expends substantial money or labor in reasonable reliance on the license and the licensor should reasonably expect such reliance, the licensor is estopped from revoking it.
What are the element of easement by estoppel (irrevocable license)?
(1) a license, typically for access purposes; (2) the licensee expended substantial money or labor in good faith reliance; and (3) the licensor’s knowledge or reasonable expectation that reliance will occur.
Do easements survive transfer of the servient land?
Yes, unless the grantee is a bona fide purchase
Are easements in gross transferable?
Only if it serves a commercial purpose
Are appurtenant easements transferable?
Because they are are seen as attached to land, the benefit of the easement automatically transfers to the grantee.
How does an appurtenant easement transfer?
when the servient land is conveyed, the easement remains attached to the land so long as (1) it runs with the land; (2) notice to the burdened property owner either (a) actual; (b) record; or (c) inquiry
How does an easement in gross transfer?
only commercial easements in gross are freely transferable; non-commercial easements in gross are not transferable.
What is an equitable servitude?
A promise related to land use (e.g. height restriction for building) that runs with the land in equity unless the purchaser is a bon fide purchaser.
What is a bona fide purchaser?
A subsequent purchaser for value without notice of the covenant
How should you approach horizontal and vertical privity?
(1) identify the promise; (2) identify the burden/benefit; (3) identify the successors
What is the remedy for violation of a real covenant?
Traditionally, money damages.
What is a real covenant?
a promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors
What does the FHA of 1968 generally prohibit?
Discrimination in the sale or rental of dwelling based on protected classes including pregnant people or disabilities.
What specific conduct is prohibited by the FHA of 1968?
Refusing to rent, sell, or negotiate or providing different terms, conditions or privileges based on a protected status.
Does the FHA prohibit publishing advertisements with preferences for prospective tenants or buyers?
Yes, and the two exception for certain dwellings do not apply to this prohibition.
What is considered a dwelling under the FHA act of 1968?
Any building, structure, or portion thereof which is occupied as, or deigned or intended for occupancy as, a residence by one or more families.
What kinds of dwellings are exempt from the FHA provisions of sale, rentals, and negotiations?
(i) owner-occupied apartment up to four units or (ii) single-family residences rented or sold without a real estate broker or salesperson
The owner occupied and single-family residence exemptions apply to advertisements (T or F)?
False, advertisements cannot discriminate on the basis of protected class regardless of the size/owner seller exceptions.
What does the Civil Rights Act of 1886 apply to?
(i) prohibits discrimination on the basis of race in the leasing or sale or any type of property; however, it does not cover advertising; (ii) applies to intentional discrimination
Does the FHA apply to roommate arrangements?
No, it does not apply to shared living units.
What is a covenant?
An agreement among owners that a parcel or multiple parcels of land will be used in a certain way (real covenant or equitable servitudes)
What is an express easment?
An easement created by agreement and in writing
What is an implied easement and what are the four types?
Easements created by operation of law. The four kind are implied by prior existing use, easement by necessity, prescriptive easement, easement by estoppel (or irrevocable license)
What is the scope of an easement?
it depends on the intent of the original parties, but generally an easement holder may do anything that is reasonably necessary for the full enjoyment of the easement, unless evidence provides otherwise.
Can an easement be expanded?
Generally, an easement holder may increase the manner, frequency, or intensity of an easement’s use so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.
Can prescriptive easements be expanded?
Generally, no because the creation is not based on the intent of the parties.
Can the change in technology increase the scope of an easement?
Yes, easements generally expand to accommodate technological change such as telephone lines or cable TV lines.
What happens to an easement when the dominant land is subdivided?
every lot owner in the subdivision is entitled to use any easement appurtenant to the dominant land, BUT the easement cannot unreasonably burden the servient land.
Can an easement holder benefit a third-party?
No. In general, an easement holder cannot use the easement to benefit any other parcel other than the dominant land.
What is the mnemonic for ways that an easement can terminate?
TAMPER
What are the six way an easement can terminate?
(1) Terms of an easement;
(2) Abandonment;
(3) Merger;
(4) Prescription;
(5) Estoppel;
(6) Release
How does an easement terminate under terms of an easment?
The parties can include an express limitation to the easement, such as expiration date, term of years, or a condition.
How does an easement terminate under abandonment?
depends on the easement holder’s intent but abandonment 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.
How does an easement terminate under merger?
If one person obtains title to both the easement and the servient land, the easement terminates under the doctrine of merger; however, it only suspends the easement when there are future interest in the dominant land or servient estate.
How is an easement terminated through prescription?
through the same elements as an easement by prescription, except the servient owner must substantially interfere with the holder’s use of the easement.
How does an easement terminate under estoppel?
if the servient owner substantially changes his position in reasonable reliance on the holder’s statement that the easement will nto be used in the future.
How is an easement terminated through release?
the easement holder may release the easement to the servient owner by executing and delivering a writing that complied with the SoF.
Who has the duty repair and maintain an easement?
On the easement holder unless the parties agree otherwise. However, the servient estate owner has a duty to contribute to the reasonable costs of repairs and maintenance if they use the easement.
Who is a real estate broker?
an agent who represents a principal who is selling real proeprty
how do real estate agents/brokers make money?
they earn a commission based on the listing agreement
What are the three basic types of listing agreements?
(1) open listing where the seller pays first broker to find a “ready, willing, and able buyer”;
(2) exclusive agency listing where the broker is the only one authorized to find buyers, but no commission if the seller finds a “ready, willing, able buyer”
(3) exclusive right to sell listing where a broker receives a commission even if anyone finds a “ready, willing, and able buyer”
Do purchase contracts have to meet the SoF?
Yes, there must be:
(1) a writing;
(2) signed by the party to be bound
(3) that contains the essential terms which include the identify of the parties, the price, and description of the property
What are the essential terms of a purchase contract?
(1) identity of the parties;
(2) the price;
(3) description of the property
What are two exceptions to the SoF for purchase contracts?
(1) Part Performance;
(2) Estoppel
What is part performance?
in general, an oral contract for the sale of real property cannot be enforced. however, it can be enforced through specific performance if part performance occurs.
How does part performance work?
If two of the following are satisfied, part performance can be used as an equitable remedy to force specific performance of a contract:
1. Buyer takes possession of the real property;
2. Buyer makes substantial improvements to the real property;
3. Buyer makes a payment of some or all of the purchase price to the Seller`
What is Estoppel in a purchase conract?
The doctrine focuses on the equities between the parties. In general, an oral contract for the sale of real property may be enforced so long as both elements are satisfied.
What are the two elements for the equitable remedy of estoppel?
(1) Buyer substantially changes their position in reliance on an oral promise by the Seller; AND
(2) Buyer will be substantially injured if specific performance is not granted.
- e.g. oral contract for a home so you sell your own and now you can’t afford another home elsewhere
What is marketable title?
Title to real property that is reasonably free from doubt, i.e. title that a reasonably prudent buyer would be willing to accept. Does not need to be perfect but must be free from questions that might present an unreasonable risk of litigation.
How does marketable title arise?
It is an implied covenant and implied condition in a purchase and sale contract.
Whys is marketable title important?
If it is unmarketable, then Buyer can rescind the purchase and sale contract. Unmarketable title allows only Buyer to rescind, not seller
What makes a title unmarketable?
(1) Problem with title (e.g. less property interest than identified in contract, or subject to encumbrance even if recorded, unless in K.)
(2) Risk of litigation due to uncertainty of title, violation of law, violation of a private covenant;
(3) Must be a substantial problem; not immaterial defect
When is title NOT Unmarketable?
- If parties agree to terms such as
a. contract indicates “no promises re marketable title”
b. purchase K explicitly lists encumbrance or potential litigation
c. Zoning restrictions (unless violated)
d. Visible easements for roads, power lines, sewer pipes or other utilities. - Physical defects: marketable title concerns “title” to property, not the physical condition.
What is the executory period in a purchase contract?
The period of time after the parties sign but before the closing date. During this time, the seller’s title is examined, the condition of the property is evaluated, financing for purchase is obtained, escrow account is opened to consummate the transaction, and the deed/mortgage/promissory note/and escrow instruction are prepared.
If a problem with title is discovered during the executory period, can the buyer rescind the purchase contract?
No, if possible, the Seller has until closing to fix the problem with title
If the seller is not able to cure problems with title during the executory period, can the Buyer rescind the purchase contract?
No, if the purchase and sale contract does not have a “time is of the essence clause”, the Seller has a reasonable time to cure after the closing date (1-2 months but the longer the problem has been known to the seller the less time is permitted).
If a problem with title is discovered, and a time is of the essence clause is present, what happnes?
The seller must provide marketable title at closing.
If it is obvious that a problem with title cannot be cured prior to closing, what can the Buyer do?
Rescind the contract due to the unmarketable title prior to closing (e.g. one-story house can’t become a two-story house in one week.
What defects must a seller disclose?
- a defect that is known to the seller or has reason to believe;
- the defect is not known or not readily discoverable by a Buyer exercising due care (latent defects), and
- the defect materially impacts the value of the contract.
What are the two cardinal sins of sales contracts?
- misrepresentation;
- Active concealment
Is misrepresentation allowed?
No intentional misrepresentation is permitted, either oral or written
Is active concealment allowed?
No active concealment is permitted, even if not oral or written statement (e.g., no putting paint over large hole in the wall)
What are the elements of active concealment?
(1) false statement or active concealment of material fact made by the seller to buyer;
(2) known to the seller to be false;
(3) made with the intent to induce buyer to purchase;
(4) which the buyer justifiably relies on in deciding to buy
Are “as-is” clauses enough to overcome Seller’s liability for failure to disclose or fruad?
Majority rule says no. Minority says yes. Commercial real estate, usually enforceable.
Are specific “as is” clause (waiver) enough to disclaim liability of a seller?
If the “as is” clause identifies and disclaims liability for specific types of defects, it is likely to be upheld.
What is a seller or buyer breach?
when either seller or buyer refuse to go through with the transaction (justifies remedies)
What can happen as a result of a seller’s breach?
Justifies buyer’s rescission and other remedies; failure to deliver marketable title, to disclose when obligated to disclose, failure to comply with any conditions included in the purchase contract (e.g. Seller promises to paint building)
What qualifies as buyer’s breach?
failure to comply with any conditions included in purchase contract (e.g., buyer must maintain the site during the executory period); can result in rescission and other remedies
What is the buyer’s remedy for refusal to perform the purchase and sale contract?
Specific performance if money damages are inadequate as a remedy for buyer; court’s typically presume money damages are inadequate because real property is unique, and thus court’s usually grant buyer’s request for specific performance.
What is the seller’s remedy for refusal to perform the purchase and sale contract?
Specific performance if money damages are inadequate as a remedy for sellers.
What are the different kinds of damages for breach of the purchase and sale contract?
- restitutions damages: original position
- reliance damages: expenses from reliance
- consequential damages: foreseeable damages to non-breaching property if reasonably certain
- liquidated damages: written
- Expectation damages
What are expectation damages?
difference between contract price and FMV on date of breach
What is the equitable conversion doctrine?
the idea that once the purchase contract is entered into, it converts the legal right to property from seller to buyer. i.e. buyer gets equitable right to real property while seller get legal right to payment;
Note: risk of loss is passed to the buyer and must pay contract price if property destroyed during executory period
What if the buyer or seller dies during the executory period?
the contract is still value and is still enforceable by the beneficiary of either party.
What are the requirements of a valid deed?
- SoF (writing signed by grantor) (expcetions of part performance and equitable estoppel)
- Must state parties, words indicating conveyance, description/identification of the property
What are considered nonessential components of a deed?
Consideraition, Habendum clause of encumbrances, servitudes, or subject to all restrictions of record, warranties of title, recording, notary public acknowledgment
What are the key elements of delivery of a deed?
- grantor manifest’s intent to transfer an immediate property interest (present of future) to the grantee;
- grantee acceptance of the deed (usually presumed)
Delivery of a deed rebuttable (T or F)?
True
Can physical delivery be rebutted?
there is a rebuttable presumption that it was delivered; if no physical delivery then there is a rebuttable presumption that it was not delivered; if recorded; rebuttable presumption that delivered (hard to rebut)
When do wills take effect?
At testators death
Can deeds function as will stubstitutes?
No, they require present and irrevocable conveyance
What is estoppel by deed?
Provides that if a seller conveys property with a warranty deed before they have title to it, then , when they later obtain the property, they are are estopped from claiming title. As a consequence, the grantee gets title.
What protections do buyers have against potential title defects that don’t emerge until after closing?
- Title covenants: grantor promises in deed that title is good in deed warranties
- Recording system: state of title based on searching public land recording
- Title insurance: pay for title insurance company policy that insures grantee’s title
What is the merger doctrine in the context of marketable title?
- Warranty of marketable title expires at closing; title promises in the purchase contract “merge” into the deed (disappear)
- post-closing, deed warranties (containing title covenants) apply to actual issues that arise (not based on doubt as to risk of litigation as in marketable title)
What are the three common types of deeds?
- General Warranty Deed;
- Special Warranty Deed
- Quitclaim deed
What is a general warranty deed?
the grantor warrants title against all the facts, whether they arose before or after they obtained title
What is a special warranty deed?
the grantor warrants title against all defects that arose after they obtained title
What is a quitclaim title?
the grantor makes no warrantee about title, so the grant he receives, only what the grantor has, if anything
What are the standard covenants?
A. Present Covenants
1. Covenant of seisin;
2. Covenant of right to convey;
3. Covenant against encumbrances
B. Future Covenants
1. Covenants of warranty
2. Covenant of quiet enjoyment
3. Covenant of further assurances
What do title recording keep track of?
- sales
- transfer by will or intestate succession;
- mortgages;
- leases;
- servitudes;
- Creditor liens
Who gets priority of title in a race jurisdiction?
Whoever records first; notice is irrelevant
Who gets priority under a notice statute?
A subsequent BFP (no notice and pays valuable consideration) prevails over a prior grantee who failed to record.
Who get priority under a race-notice jdx?
A subsequent BFP (no notice and pays valuable consideration) is protected only if she records before the prior grantee.
What counts as notice?
- Actual notice: knowledge of the prior interest in the real proeprty
- record notice: recorded in county records
- inquiry notice: visible/apparent so should have asked
What is the BFP Shelter Rule?
If a BFP is protected, then a subsequent purchaser from the BFP is also protected even if the subsequent purchaser knew of the prior unrecorded interest.
What is title insurance?
a contract indemnity between the issuing company (the insurer) and the property owner or mortgagee (the insured)
What does title insurance generally cover?
(a) exceptions for specific actual or potential defects and (b) standard exclusions, such as:
(i) problems created by the insured party; (ii) defects not shown by public records, but known to the insured part; and (iii) the impact of any law, ordinance, or regulation relating to the use or occupancy of the land.
What is a wild deed?
a prior conveyance from a grantor who is outside the recorded chain of title, does not give record notice to subsequent purchasers (e.g. O Grants to A, A does not record but then later conveys to B who records, O then conveys to C. C is not charged with record notice of A-B
What is a promissory note?
a contract that establishes personal liability for a loan. Contains amount, terms, timeline and sometimes prepayment clause (permitted if mortgage allows, often with penalty); acceleration clause, due on sale clause
What is a mortgage?
a recordable interest to provide record (constructive) notice
- recorded mortgage means security interest will bind susbequent purchasers after foreclosure
- complying with recording statute protects mortgagee (lender) from prior unrecorded interests
- if not recorded subsequent bona fide lender may take priority
What is lien theory?
Lender obtains a “lien” on the property: right to sell (to foreclose) the property if borrower fails to repay
What is title theory?
lender obtins title to the property until borrower pays off debt
- borrower treated as owner
- JT: mortgage of separate interest court sever
What is a mortgage with power of sale?
Mortgage authorizes lender to sell the property at auction and distribute the proceeds
What is a deed of trust?
Like a mortgage with per of sale but the borrower “trustor” grants property interest in “trustee (often bank official), not lender. the lender is the trust’s beneficiary (comparable to mortgagee); if borrower defaults, the lender (bank) tells trustee to foreclose.
What happens when a mortgaged property is sold but the loan stays in place because it is not paid off?
Default rule: if deed is silent, a new Buyer is not personally liable but still faces risk of foreclosure (unless protected by the recording statute)
If a property is purchased subject to the loan, is the new buyer liable for the mortgage?
No, they are not personally liable but still face the risk of foreclosure.
If a property is purchased assuming the loan, is the new buyer liable for the mortgage?
Yes, they are personally liable and risk foreclosure.
What is surety?
the original buyer remains personally liable for the loan based on the original promissory note, unless they are released from the obligation by the mortgagee
What happens when a mortgagor defaults on their loan?
Before the lender “accelerates the loan, the borrower can reinstate (make all late payments); but if the lender has accelerated, the borrower has “equity of redemption” which means they have the right to redeem by paying full amount due
What is a deed in lieu of foreclosure?
If borrower and lender agree, a borrower in default can give the lender the deed to avoid the hit on their credit. this is uncommon because the bank takes title subject to all liens/interest on th property
What is a judicial foreclosure?
- the lender files complaint against the necessary parties (borrower, junior lienholders and all other junior interests such as servitude holders)
- borrower, junior lh, and junior interests can file answer
- possible claims: no mortgage, no default, defense to mortgage formation;
- if not contested, lender obtains judgment by default
What is the process for a judicial foreclosure?
- authorizaton by judge,
- notice of public sale
- public auction
What if the mortgage contains a “power of sale” foreclosure provision
- most states require advanced notice to borrower of foreclsoure;
- notice to all junoior interest holders
- public notice of slae
- public sale conducted by lender or trustee
- No direct judicial role
What happens to interests in the land after foreclosure?
- Senior interests are still attached to the property (e.g. senior lien and easements);
- Junio interests are eliminated (e.g. junior lien and lease)
- The foreclosing lender’s lien is eliminated
How are the proceeds of the sale distributed after a foreclousre?
Assuming no special priority-changin rules: 1. foreclosure lienholder, 2. junior lieholders, 3. Borrower, 4. senior lienholders do not get anything, but their liens remain on the property
Who can the lender pursue for deficiency?
if foreclosing lender and other lienholders don’t get amount owed from foreclosure sale (and borrower/debtor isn’t paying), the lienholder’s options are:
1. Junior lienholder: sue borrower on the promissory note
2. Senior lien holder: if lien still attached to the property, foreclose on the bidder who holds title to the property after foreclosure sale.
What should you consider when analyzing priorities?
- Basic rules;
- Special rules if they could change priority
What are the special mortgage priority rules?
- Junior interest did not get notice of foreclosure
- Senior interest was not recorded
- Purchase Money Mortgage (PMM) Priority
- Deed in lieu of foreclosure
What happens if a junior interest does not get notice of foreclosure?
the junior interest is not wiped out by the foreclosure sale
what happens if a senior interest is not recorded?
junior mortgagees who are bona fide encumbrancers have priority over earlier unrecorded itnerests who failed to record under applicable recording statute
What happens to a PMM in foreclosure?
they have priority over more senior liens, even if the PMM lender had notice
What happens to a Deed in lieu of foreclosure at foreclosure?
the lender takes subject to junior liens
When applying the special rules of priority, whats the order of operation?
- Impact of recording statutes on priority of lenders;
- interests
- distribution
- Deficiency
What is zoning?
the division if a jurisdiction into districts in which certain uses and developments are permitted or prohibited
Is zoning public or private law?
Public (done by the gov.)
Who can enforce zoning?
Local government officials. In contrast, covenants can be enforced by private property owners at law or equity
Are there exceptions to zoning if you already had a prohibited use?
Yes, nonconforming use
What is nonconforming use?
a use of land that lawfully existed before the zoning ordinance was enacted but that does not comply with ordinance; expansion is usually prohibited; cannot be transformed to other nonconforming use; minor repairs are permitted but major repairs that will extend the duration of the use are not permitted.
How are nonconforming uses terminated?
(a) abandonment; or (b) destruction
How does abandonment occur in nonconforming use?
(1) the owner intends to abandon the use, and (2) the use is discontinued for a substantial period
How does destruction of nonconforming use occur?
destruction of a structure containing nonconforming use terminates the right to continue use, even if accidental
Are there exceptions to zoning if i have a hardship?
Yes, variance may be permitted.
What is variance?
a permitted deviation from strict enforcement of a zoning ordinance in an individual case due to special hardship. It permits a particular parcel of land to be sued in a way that would otherwise violate the zoning ordinance. e.g. area variance and use variance.
What is an area variance?
allows modification of height, location, setback, size, or similar requirements for a use that is permitted in the zone
What is use variance?
Allows a use that would normally be prohibited in the zone. Like nonconforming except asking for permission.
What is the standard for granting variance?
(1) owner’s hardship such as not being able to put their land to use because of the zoning, some unique issue with the property; and (2) the impact on the neighborhood or zoning district, such that it will not alter the essential character of the area.
When will a variance not be granted?
- owner created hardship
- hardship is personal and not based on property use
What is a covenant?
an agreement among owners that a parcel or multiple parcels of land will be used in a certain way.
- Real Covenants (Remedy: Damages)
- Equitable Servitudes (Remedy: Injunction
What is a real covenant?
A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors.
What is needed for the burden to run between successors?
Mnemonic: SITNHV
1. SoF
2. Intent to bind successors
3. Touch and concern the land
4. Notice
5. Horizontal privity
6. Vertical Privity?
What is needed for the benefit to run between successors?
Mnemonic: SITV
1. SoF
2. Intent to bind successors
3. Touch and concern the land
4. Vertical Privity
What does it mean for it to touch and concern the land?
It must relate to the enjoyment, occupation, or use of the land
How is notice satisfied?
Promisor’s successor must have notice by ARI
How is horizontal privity met?
original parties to the covenant to have shared some interest in the land independent of the covenant (e.g. landlor-tenant, cotenant, owner of dominant land and servient tract of an easement, grantor-grantee, and mortgagor-mortgagee)
How is vertical privity met on the burden side?
For the burden to run, vertical privity requires, the successor to the land receive the entire estate held by the original promisor
How is the burden met on the benefit side?
For the benefit to run, Vertical privity requires, the successor the land receive either the entire estate or a smaller estate held by the original promisor (e.g. life-estate for the original owner)
What is an equitable servitdude?
A promise that, regardless of whether it runs with the land at law, equity will enforce against the successors of the burdened land unless the successor is a BFP.
What are the requirements for the burden of an equitable servitude to run?
Mnemonic ScITN
1. SoF, or common plan
2. Intent to Bind Successors
3. Touch and concern the land
4. Notice
What are the requirements for the benefit of an equitable servitude to run?
- SoF or common plan
How is a common plan satisfied?
- will be implied where a developer imposed uniform restriction on a subdivision in which all lots are burdened and benefited by the restrictions even if they do not appear in the chain of title to every lot (e.g., limit to residential use based on sales literature, statements by developer, and percent of deeds and restrictions)
