Easements

Question 1

Types of Easements

Answer 1

• Profits
• Affirmative Easements
• Negative Easements

Question 2

Profits

Answer 2

rights to take off the land things that were part of the land

Question 3

Affirmative Easements

Answer 3

a right in another to enter or perform an act on the servient land.

Question 4

Negative Easements

Answer 4

a right to forbid a landowner from doing something on his land that might harm another.

Question 5

Beneficiary of the Easements

Answer 5

Appurtenant

In Gross

Question 6

Appurtenant

Answer 6

right to whomever owns the parcel of land that benefits from the easement.
Presumption in law is for Appurtenant

Question 7

In Gross

Answer 7

right to a particular person without regard to land ownership of that person

Question 8

Creation of Easements

Answer 8

-Generally requires written creation. (Subject to Statute of Frauds as an interest in land.)
Also can be created by:
-Implication, or
-Prescription
*Note: Licenses are revocable whereas easements are not, except where license is to an interest in profits on the licensor’s land.
*Note: easement extinguished by merging ownership of dominant and servient estates; though can arise again upon redivision of the property.

Question 9

Reservation

Answer 9

a provision in a deed creating some new servitude which did not previously exist as an independent interest.
Ex: O to A reserving an access easement

Question 10

Exception

Answer 10

a provision in a deed that excludes from the grant some preexisting servitude on the land.
Ex: A to B except for the easement previously reserved to O.

Question 11

Quasi-Easement

Answer 11

an apparent and continuous use which the parties reasonably would expect to continue when the land is divided.
Example: Graveyard right.
Easement implied from a prior existing use. (Van Sandt situation)
Easement by (reasonable) necessity.

Question 12

Prescriptive Easements v. Adverse Possession

Answer 12

involve use and not possession (whereas Adverse Possession concerned with Possession).

Question 13

rebuttable presumption

Answer 13

if you could show use for a set number of years (but if another could show non-use between that period and the date set for time immemorial, no rights).

Question 14

fiction of the lost grant

Answer 14

courts pretend as if a grant had been made and lost if you satisfy the set number of years, even if cannot show from the date set for time immemorial.
U.S. Courts adopted “perscription” instead of use from time immemorial.

Question 15

Prescription Requires

Answer 15

exclusive use that is open and notorious, continuous, adverse, and under claim of right.

Exclusivity is loosely defined:
Allows easements even where the servient estate owner is also using the same path or way.

Question 16

Beach Access Rules

Answer 16

State holds in public trust
Most States:
From water to mean high-tide line (wet sand area) is public trust land
High-tide line inward (dry sand and vegetation line) in private ownership
Hawaii: public right up to vegetation line or line of debris.
Access
Beach access usually presumed to be with the permission of the owner so prescriptive easements individually litigated and not very successful
Customary rights of access (Florida, Oregon, and Texas)

Question 17

Covenant Requirements

Answer 17

Creation: expressly written into agreement, cannot be created by implication
Intent: originally the words “for his assigns” was used, but now intent can be implied from the circumstances under which the promise was made.
Notice: obtained through recording act, only needed for burden because it would affect price of property.

Types of Notice:
Actual (told),
Record (title search for documents properly recorded means constructive notice),
Inquiry (looking at the situation you should be able to tell, Sanborn)

Question 18

Vertical Privity

Answer 18

First Restatement:
for the burden to run, the successor must have an estate of the same duration as the promisor had.
for the benefit to run, the sucessor only needs to have an interest in the land and on the whole estate (meaning an interest carved out of whole estate).
Third Restatement:
General Reasonableness Standard for running of benefits and burdens.

Question 19

A and B, neighboring landowners, decide that they will mutually restrict their lots to single family residential use. They sign an agreement wherein each promises on behalf of herself, and her heirs and assigns, that her lot will be used for single-family residential purposes only. This agreement is recorded under the name of each signer. B sells her lot to C. C builds an apartment house on his lot. A sues C for damages. What result?

Answer 19

Answer: No damages. No horizontal privity (because A and B are not in a grantor- grantee relationship nor do they have any interest other than the covenant in each other’s land) between the parties so no running of the burden.

Question 20

A and B, neighboring landowners, decide that they will mutually restrict their lots to single family residential use. They sign an agreement wherein each promises on behalf of herself, and her heirs and assigns, that her lot will be used for single-family residential purposes only. This agreement is recorded under the name of each signer. B sells her lot to C. A builds an apartment house on his lot. C sues A for damages. What result?

Answer 20

Yes. Privity of estate is not required for the benefit to run.

Question 21

Equitable Servitudes

Answer 21

• An interest in land, binding in equity, but not enforceable against a subsequent bona fide purchaser of the land without notice.
• Enforceable regardless of its enforceability at law.
• Horizontal privity not required. Nor is vertical privity required for running of the burden.
• Burdens the land itself, not the estate (unlike covenants)
• Promisor released after conveyance from suits in law or equity
• Promissee has not right to enforce restrictions after conveyance of the benefitted land.
• Government must pay benefitted owners damages when government condemns the burdened land.

Question 22

Equitable Servitudes Requires

Answer 22

Intent that promise run (can be implied in limited circumstances)
Actual or constructive notice to subsequent purchaser
Touch and Concern

Question 23

Covenant Requirements

Answer 23

Creation: Written
 Intent: Intent can be implied
 Notice: Actual, Record, or Inquiry 
 Touch and Concern 
 Horizontal Privity
 Vertical Privity

Question 24

Equitable Servitudes Requirements

Answer 24

Intent
Notice
Actual or Constructive
Touch and Concern

Question 25

Common Interest Communities

Answer 25

“The obligation that binds the owners of individual lots or units to support of common property [facillities or activities]… whether or not the owner uses the common property or agrees to join the association.”

Often with a power to levy assessments that is enforceable with fines and a lien on individual property.

Question 26

Condominiums

Answer 26

Possible Incentives for condo form of ownership:

• Rising cost of single family homes
• Availability of shared amenities at lower cost (swimming pools, tennis courts…)
• Tax subsidy to owner-occupied housing (deductability of mortgage interest and no imputed rental value of owner-occupied housing)
• Greater affluence of apartment dwellers allows them to buy equity.
• FHA mortgage insurance on condos
• Fear of rent control by investors in rental housing

Question 27

Condominium Ownership

Answer 27

Each unit owned separately in fee simple by unit owners
Taxes assessed separately
Maintenance charges against each unit owner
Association has a right to assess a levy and to make improvements
Exterior walls, land, common areas owned by unit owners as tenants in common