Easements Flashcards
0
Q
Easement in gross
A
benefiting a particular person and not a particular piece of land. ● The beneficiary need not, and usu. does not, own any land adjoining the servient estate.
1
Q
Easement by necessity
A
An easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a road.
2
Q
Easement appurtenet
A
created to benefit another tract of land, the use of easement being incident to the ownership of that other tract. — Also termed
3
Q
Affirmative Easement
A
Entitles the easement holder to enter the servient tenement for a specified purpose
4
Q
Negative Easement
A
Entitles the holder to compel the possessor of the servient tenement to refrain from using his property in a specified manne
5
Q
Profit
A
A right to enter another’s land to remove its product, such as minerals or crops.
6
Q
Ways an easement can be created
A
- Easement by Express Grant
- Easement by Implication
- Easement by Necessity
- Easement by Prescription
7
Q
Easements creation - mnemonic
A
- Mnemonic: Easements Incorporate People’s Needs
a. Express Grant b. Implication c. Prescription d. Necessity
8
Q
Easement by Express Grant (creation of easements)
A
a. A written conveyance may expressly grant or reserve an easement, but it must be reasonably clear regarding the scope of the easement. Express easements must comply with the statute of frauds. b. Expressly granted easements will be valid if the parties unambiguously include the following elements: i. Location ii. Dimensions iii. Special uses allowed or disallowed
9
Q
Easement by Implication (creation)
A
In order for an easement by implication to arise, the dominant and servient estates must have been owned by the same person at some earlier time.
a. The use, claimed to be an easement by implication, must have existed prior to the time when the two estates were severed from each other. b. It must also have been apparent and continuous prior to the severance. c. Lastly, it must be reasonably necessary for the use and enjoyment of the dominant tenement.
10
Q
Easements by necessity - showing of necessity burden
A
When the original owner claims that he impliedly reserved an easement at the time of severance a showing of strict necessity is required, whereas a lesser showing of necessity is required when a grantee claims an implied easement.
11
Q
Easement by necessiy (creation)
A
Will arise only if the two parcels of land were, at one time, owned by the same person. No prior use is required, but a showing of strict necessity is mandatory. Example: A parcel of land is so situated that it is impossible for the owner to have access to a road without a right of way across someone else’s property.
12
Q
Easement by prescription (creation)
A
a. An easement by prescription will arise when the claimant’s use is open, notorious, and continuous for the period of time required by the statute of limitations. The statute of limitations will begin to run when the servient tenement’s owner gains a cause of action against the adverse user. b. Easements by prescription are “close relatives” of adverse possession, and similar rules regarding the disability and tacking doctrines will apply.
13
Q
Transfer of easements apportunent
A
An easement appurtenant automatically passes to the new owner upon conveyance of either the dominant or the servient tenement, unless the parties agree otherwise.
14
Q
Easement by estoppel
A
A court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief.
15
Q
Implied easement
A
implied easement. (1867) An easement created by law after an owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the sale
16
Q
Can an easement be used in connection with a nondominant estate? (2view)
A
Trad. Rule: cant, subject to injunction
Brown rule: yes, Nondominant property may also enjoy use of an easement, although technically improper, if it is found to be the more equitable solution in a proceeding for an injunction, which is based on the discretion of the trial court.
17
Q
Can a serviant tenement change location of easement agreed on?
A
Trad. Rule- no, need permission from dom.
RST: yes, doesnt burden the utility or purpose of the easement
18
Q
Prescritive easements are narrower than easements by grant, implication, or necessity. Must be:
A
Consitent with the gen. use that gave right to the easement
E.g. Easement by pedestrians cannot be broadened to include cars
19
Q
Surcharge (adding to) an easement not appropriate if
A
is prevented if assignees exercise the right as “one stock
Miller
20
Q
Mountjoy rule
A
the right of a grantee may be assigned, but if to more than one person, the two parties must work together
Modern view
21
Q
Easements in gross are assignable when (2 sources)
A
Rst: all easements in gross are assignable
Maj: yes, if parties intended
22
Q
What are the only easements in gross not assignable?
A
Recreational (hunting, boating, fishing, camping) for fear it puts too much burden on serviant estate
23
Q
Are assignable easements in gross divisible?
A
Gen rule: yes, if creating instrument says so; or
When easement is exlusive (only 1 person)
24
Mounjoy rule v. Modern law
Rst: easement in gross may be divided unless contra the intent of the parties creating easemtn; or divison unreasonable increases burden on serviant esatate
25
A, owner of Blackacre, conveys an easement over Blackacre to B, which A used to own, but subsequently sold to C. A then conveys easement over blackacre to C. Who, if any, has easement over blackacre?
HN5 An easement in gross does not require unity of title and is independent of any ownership of land. An easement is appurtenant when the easement is created to benefit the possessor of the land in his use of the land. Whether an easement is in gross or appurtenant is a question of law for the court and depends upon the terms of the grant, the nature of the right, the surrounding circumstances, and the parties' intent. The law favors construction of easements as appurtenant rather than in gross.The creation of an easement appurtenant requires that the grantee of the easement own the dominant estate, the land benefitted by the easement. This principle is known as "unity of title." Without unity of title, no easement appurtenant can be created
26
Right to pass over land for ingress, egress. Appurtanet or gross?
Where a right to pass over land is given for ingress and egress, the courts construe the easement as appurtenant rather than in gross. On the other hand, a typical easement in gross is for a railroad, utility lines, or pipelines.
27
Lost grant theory
The owner of land is presumed
28
Affirm or neg easement? O grants A right of way across O's property
Affirmative
-Owner of easement has a right to go onto the land of another and do some act.
Ex. O grants A right of way across O's property; A has an affirmative easement.
29
Whats a negative easement?
Owner of easement can prevent the owner of the servient land from doing some otherwise legal act on the servient land.
Limited to easements for light, air, lateral support, or flow of an artificial stream.
Some courts have held easement for view to be a valid negative easement.
Limited because most other situations can be handed by equitable servitudes.
30
Appurtanent or in gross?O grants A an easement to cross O's land to get to a public road.
Appurtenant
An incident of ownership of the dominant tenement, and is not personal to the original holder.
Ex. O grants A an easement to cross O's land to get to a public road.
31
Appurtant easment and tranferability
Passes with the possession of the dominant tenement.
| No need for deed to expressly mention easement.
32
Most states presume in gross? Or appurtanent?
Most states have a constructional preference for easements appurtenant over easements in gross.
An easement appurtenant increases the value of the dominant land, presumably by more than it decreases the value of the servient land.
An easement in gross does not increase the value of any land and decreases the value of the servient land.
33
In gross or appurtanent?O grants A an easement to erect and maintain billboards, or to lay utility lines.
Personal to the holder and independent of his possession of any land.
Ex: O grants A an easement to erect and maintain billboards, or to lay utility lines.
34
In gross easment and tranferability
1. Because there is no dominant tenement, successors to the holder's land do not have the easement.
2. Most courts hold that successors to the servient tenement are subject to the easement.
3. Only commercial easements in gross are generally assignable.
35
3 ways to create easement?
1. Express
2. Easement by Implication (a.k.a. By Operation of Law
3. Creation by Prescription
36
Express Easements; oral or written?
| ).
Must satisfy the Statute of Frauds (be in writing, signed by grantor
-If not in writing, only oral, grantee has a license to use the land.
A license is revocable at any time unless there is an estoppel claim.
37
Express easements May be created by grant or by reservation. Difference?
1. Express Grant - O conveyed a right of way over O's land to A.
2. Reservation - O conveyed Blackacre to A but reserved a right of way across the land.
38
Express easements: assignability to 3rd party?
1. Common law does not allow reservation to a 3rd party.
2. Minority of jurisdictions allow now.
3. Covenants, however, can be used to benefit a 3rd party.
39
Easement by implication: oral or written?
Created by operation of law, not by written instrument.
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2 types of impled easements?
1. Easement Implied from Prior Use
| 2. Easement Implied from necessity
41
Easement implied by prior use: purpose
1.Looking to give effect to the original intent of the owners.
Since they forgot/failed to expressly negotiate these uses and they would have if they had thought about them, courts can give effect to these intentions.
42
Easement implied by prior use: elements
1.The two parcels were under single ownership,
2. There was a permanent or continuous pre-subdivision use,
Courts interpret continuous to include a permanent physical change in the land for a particular use.
Ex. The improvement of a roadway by paving is a permanent change in the land, and thus a continuous use, even if the road is not used every day.
3.The use was apparent upon reasonable inspection, AND
A non-visible use may be apparent.
If could have been discovered by hiring someone to do an inspection, held to be apparent.
Ex. Underground drains may be apparent if the surface connections would put a reasonable person on notice of their presence.
5. The easement is reasonably necessary.
Most jurisdictions look at reasonable necessity, not strict necessity.
Relevant factors include cost and difficulty of establishing an alternate use.
43
Easement Implied from Necessity (IE)
| Reasons for easements by necessity
Public policy requires a way of access to each separate parcel of land.
Because access is essential to use, the parties intended to create an easement but overlooked putting it in the deed.
44
Easement Implied from Necessity: elements
1. The dominant tenement is landlocked from public road or some utility line.
2. The servient and dominant tenements were owned by a single owner at the time of the conveyance giving rise to the necessity, AND
3. The necessity must exist at the time the property is divided.
45
Necessity (IE) degree
An easement is necessary.
1.Common law required absolute necessity.
2.Most courts today require a showing of strict necessity; minority require only reasonable necessity.
3.Most states do not require the dominant tenement to pay for the necessary easement.
Ex. Reese v. Borghi (p.734)
Land was sold to two parties, landlocked one party. Party used a path to get to road; path was blocked by a house built by other party.
Held that easement by necessity existed. Does not matter if landlocked party knew their land would be landlocked at the time they bought it. An easement by necessity cannot be negated by the express intent of the parties.
46
Creation by prescription
Criteria
Actual
Adverse
Majority do not look at state of mind for good faith.
Some require good faith belief that he has the right to use the land.
Fails if the use is permissive.
Ex. Finley v. Botto (p.741)
Two families owned apartment buildings 4 feet apart. Area between was used by tenants in one building to get to laundry room. Other building constructed a wall where the walkway was.
Held that since the use of the land for a walkway was permissive, no prescriptive easement exists. Courts look to the relationship between the parties. If neighborly goodwill is found, not adverse.
Open and notorious; AND
Use must be made with no attempt of concealment.
For underground, non-visible uses, if it could be reasonably discovered on inspection, this requirement is satisfied.
Continuous and uninterrupted for the prescriptive period.
Continuous does not mean constant. Seasonal uses are found to be continuous (picking raspberries on land during raspberry season).
Tacking is allowed to meet the statutory time requirement; same requirements for tacking as adverse possession usually (privity).
How to reset the clock for prescriptive easements
Easiest for a landowner to defeat a prescriptive easement by completely allowing the use one day out of a year.
Insufficient in some jurisdictions to allow use, must disallow.
Some jurisdictions find that a protest by the landowner to the prescriptive user to be sufficient to break the uninterrupted requirement, reset the clock.
Other jurisdictions require the landowner to actually stop the use for a day.
Can always bring suit for injunction to reset clock.
Cannot use prescription to get a negative easement.
This is because it would be unfair to give a would-be dominant tenement a prescriptive right that B could not prevent from arising.
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Determining/Widening the Scope of Easements
| General idea
The scope of an easement mostly depends on the intention of the parties.
Methods of determining this intent sometimes vary according to the type of easement.
48
Scope of easement: express easement
Express Easements
1.Courts will look to the language of the instrument, together with surrounding circumstances to determine parties' intent.
2.Easements of way (access) are given a scope that permits it to meet the needs of the dominant tenement as it normally develops.
Ex. Faus v. City of Los Angeles (p.726)
Private individuals gave an easement to the city to put a light rail tracks on their land to provide transportation service to the city. Light rail ran for a while; later, rail was scrapped, city constructed a road on the land.
Held that the conveyance should be assumed to have intended to accommodate future needs. The net effect is the same, improvement of public transportation/access
49
Scope of easement:Implied Easements
1. Easements Implied from Existing Use
- Scope is generally the same as an express easement.
- Changes that reasonably might have been expected or that are necessary to preserve the utility of the easement are permitted.
2. Easements Implied from Necessity
- The extent of necessity determines the scope.
50
Scope of easements: prescription
Easements by Prescription
1.More difficult to increase the burden of an easement by prescription than any other kind of easement.
2.The uses that gave rise to the easement can continue, but there is no basis for assuming the parties intended the easement to accommodate future needs.
Ex. O might not have objected to A crossing O's land to pick apples on A's land but would have objected to A driving a truck onto O's land to pick apples.
Look to see whether there is an increase in burden on the servient land.
51
Subdivision of Dominant Easements
| Appurtenant Easements
A. If the dominant estate is subdivided, each subdivided lot has a right to easements appurtenant to the dominant estate.
CAVEAT: However, the servient estate is not to be burdened to a greater extent than was contemplated at the time the easement was created and is necessary to accommodate normal development of the dominant estate.
Courts are split; one held that subdivision of 4 lots into 40 created unreasonable burden. Other held that subdividing 126-acre tract not unreasonable burden.
52
Subdivision of Dominant Easements
| In gross
1. Can be divided or apportioned only if in gross easement is exclusive (easement holder is the only one who enjoys the right).
2. Cannot be divided or apportioned if the in gross easement is non-exclusive (easement holder and the servient owner both enjoy the use granted in the easement).
Ex. Easement holder of right to hunt on land can only bring others on the land to hunt if the easement is exclusive.
53
Changes in the Location/Width of the Easement
| Majority Rule
1. If an easement has been granted in a specific location, the location cannot be changed by one party acting unilaterally even if there is no change in burden/convenience.
2. If the width of an easement is specified in the grant, or if it existed at the time of the grant so that it can be inferred that the parties intended it to remain the same width, the easement cannot be widened without the consent of the servient owner.
54
Changes in location of easement: RST Minorirty rule
Restatement Rule
The servient owner may relocate the easement or make reasonable changes in its dimension when necessary to permit normal development of the servient estate, provided the changes do not unreasonably interfere with the easement holder's use.
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Transfer of Easements
| Easements Appurtenant
Easements Appurtenant
1. The benefits of any easements appurtenant are transferred with the land when the dominant land is transferred.
2. Easements appurtenant are thought of as attached to the dominant land.
- Thus, even passes to adverse possessors.
- The burdens of any easements appurtenant are transferred with the land when the servient land is transferred.
3. Does not matter if the easement is mentioned specifically in the deed.
56
Transfer of Easements
| In gross
At common law, courts held that the benefits of easements in gross were not assignable.
General rule now…
The benefits of a commercial easement in gross are assignable.
Would be unfair for a utility company to lose its easements when it merged with another company.
Exclusive commercial easement in gross may subdivide or apportion as long as not exceedingly greater burden on servient estate.
The benefits of a noncommercial easement in gross are generally nonassignable; they are only assignable if the parties so intend.
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reciprocal negative easement.
An easement created when a landowner sells part of the land and restricts the buyer's use of that part, and, in turn, that same restriction is placed on the part kept by the landowner. ● Such an easement usu. arises when the original landowner creates a common scheme of development for smaller tracts that are carved out of the original tract. [Cases: Covenants 20; Easements 13.]
58
Vertical privity
2. Privity between one who signs a contract containing a restrictive covenant and one who acquires the property burdened by it.
59
horizontal privity. (
1968) Commercial law. The legal relationship between a party and a nonparty who is related to the party (such as a buyer and a member of the buyer's family). [Cases: Sales 255.]
© 2011 West, a Thomson business
Bryan A. Garner, Editor in Chief
p. 1320
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In prop transaction, is consideration required?
No
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2 types of servitudes
Easements
Covenants
(2 minor forms are profits and licenses)
62
2 types of covenants
Coventents eforceable at law(real covanents)
| Covanents enforcable at equity(equitable servitudes)
63
A is given the right to enter upon Bs land
Easement
64
A is given the right to enforce a restriction on the use of Bs land
Negative easement, a real covanent, or an equitable servitude
Depending on the remedy sout
65
A is given the right to enter Bs land and remove something attached to the land
Profit
66
If its unclear what type of easement is intended by the parties, a _________ is presumed
An easement appurtenant
67
Sellers reserved a easement for "the watering of livestock owned by the sellers"
Court construed easement appurtanemt
68
Easements appurtanent require (2)
A dominent tenement
| A servient tenement
69
Appurtenant easements are usually transferable. The easement transfers along with ....
The dominent tenement to sucessive owners
70
Becuase an easement in gross does not benifit any land, it involves
No dominent tenement, only a serviant tenement
71
Easements and profits, being interests in land, are within the ______.
Statute of frauds
72
conveyances that vest interests in third parties(church can use your parking lot)
Common law
Williard and Rst
Common law- grantor cannot reserve an intrest in a 3rd party
Modern- look to carry out grantors intent
In order to determine whether a court should apply the old common law rule to grants made prior to the courts decision, a balancing of equitable and policy considerations must occur. The court should examine the injustice of refusing to give effect to the grantor's intent versus the result of failing to give effect to an individual's reliance on the old common law rule and policy against disturbing settled titles.
73
Willard court said easemnt can be reserved in favor of a 3rd party, but not excepted in favor of a thrid party. What is the diff..?
1. Reaervation- a provision in a deed creating some NEW servitude which didnt exist before as an independent intrest
2. Exception- a provision in a deed that excludes from the grant some PREEXISTING servitude on the land.
74
O conveys Blackacre to A ______ a 20 ft easement of way along the south boundry of blackacre. The easement did not _________ prior to the conveyance by O.
Reservation or exception?
Reservation. Didnt exist as an independent intreset prior
75
O conveys Blackacre to A reserves a 20 ft easement of way along the south boundry of blackacre. The easement did not exist prior to the conveyance by O.
A then conveys blackaxre to B, except for the the easement previously reserved to O.
Exception. Cannot be conveyed to a thrid party.
76
A license
An pral or written permission given by the occupant of land allowing licensee to do some act that otherwise would be a tresspass. Ie
- plumber fixing drain
- guest coming to dinner
- moviegoer
77
Dif between license and easment
Liscense is revocable where an easement isnt
78
Exception to the rule liscenses are revocable
1. A liscense coupled w. a intrest cannot be revoked(one that is incidental to ownership of chattel O grants right to enter and take timber (like easement by necessity)
2. A license that becomes irrevoable under rules of estoppel
licensee has a chattel on the licensor’s land. The licensor cannot revoke the license in an attempt to prevent the licensee from entering his land to reclaim the chattel.
RST says these licenses are easments
79
Liscense by estoppel(irrevocable) Holbrook
Synopsis of Rule of Law. A license by estoppel can be created by 1.licensor's consent,
2.along with the licensee's construction of various structures and repair to the land in question.
80
Where a license is not a bare right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements
the licensor may not revoke the license after the licensee has erected improvements at considerable expense. .
81
Creation of easements 1. Easement by Express Grant
a. A written conveyance may expressly grant or reserve an easement, but it must be reasonably clear regarding the scope of the easement. Express easements must comply with the statute of frauds. b. Expressly granted easements will be valid if the parties unambiguously include the following elements: i. Location ii. Dimensions iii. Special uses allowed or disallowed
82
Ceation of easements 2. Easement by Implication
In order for an easement by implication to arise, the dominant and servient estates must have been owned by the same person at some earlier time. Requirements:
a. The use, claimed to be an easement by implication, must have existed prior to the time when the two estates were severed from each other. b. It must also have been apparent and continuous prior to the severance. c. Lastly, it must be reasonably necessary for the use and enjoyment of the dominant tenement.
83
Creation of easements-Easement by Necessity
Will arise only if the two parcels of land were, at one time, owned by the same person. No prior use is required, but a showing of strict necessity is mandatory. Example: A parcel of land is so situated that it is impossible for the owner to have access to a road without a right of way across someone else’s propert
84
Creation of easements4. Easement by Prescription
a. An easement by prescription will arise when the claimant’s use is open, notorious, and continuous for the period of time required by the statute of limitations. The statute of limitations will begin to run when the servient tenement’s owner gains a cause of action against the adverse user. b. Easements by prescription are “close relatives” of adverse possession, and similar rules regarding the disability and tacking doctrines will apply.
85
Creation of easements mneomic. 5. Mnemonic: Easements Incorporate People’s Needs
a. Express Grant b. Implication c. Prescription d. Necessity
86
The scope of an easement by necessity is
strictly confined to the necessity
87
Easements may be enlarged by
prescription
88
Scope of easmentsReasonably foreseeable normal changes in use will be permitted if
the resultant increased burden on the servient tenement is not unreasonable.
89
The servient tenement’s owner may grant an identical easement to a third party if the granted easement is
not inconsistent with the original easement holder’s interest.
90
Prior location, dimension, and special uses determine the scope of
implied and prescriptive easements
91
Except for commercial easements, an easement in gross is generally not.
alienable
92
Transfer of easeements
1. An easement appurtenant automatically passes to the new owner upon conveyance of either the dominant or the servient tenement, unless the parties agree otherwise. 2. If the servient tenement is subdivided or conveyed in whole or in part, the burden of an easement appurtenant remains with those portions of the property, subdivided or conveyed, that are subject to the easement. 3. Except for commercial easements, an easement in gross is generally not alienable.
93
Easements may be terminated by
1. Written release 2. Prescription 3. Abandonment The holder must manifest an intent by conduct (not words alone) to permanently discontinue using the easement. 4. Merger (i.e., common ownership of the servient and dominant tenement). 5. When the purpose for the original creation of the easement no longer exists. 6. When creating document prescribes conditions governing the easement’s duration. 7. Forfeit (i.e., the servient tenement’s burden dramatically increases and cannot be alleviated). 8. When the easement is by necessity and the necessity no longer exists. 9. Estoppel (i.e., the owner of the servient tenement changes his position in reliance on the words or conduct of the easement holder).
94
An owner cannot have an easment in his own land, however, make make use of part of his land to benifet another called a
Quasi easment
95
Hidden easements
Rst implying easements where the prior use was for underground utilities serving either parcel
96
If the dominent and servient tenement come under the same oepwner
Te easment is extinguished and is not revived upon a severence of the former
97
Prior use, as a factor in determining the intent of the parties, includes not only uses that were known at the time of the conveyance, but also...
those that had a possibility of being known at that time and those that a party might reasonably have foreseen the other party expected.
98
In order to find an implied easement, you must look back to the time of the common owner and determine
whether the easement was a necessity and not a mere convenience at the time of the severance of the dominant and servient estate. Othen
99
An implied easement may be shown if (3)
(1) originally there existed common ownership of the dominant and servient estate;
(2) the easement is a necessity not a mere convenience and
(3) the necessity existed at the time of the severance of the two estates. Here, there was a common owner, Hill. However, there was no necessity because the common owner retained the ownership for 3 years of the 16 acres over which he could have accessed the road or could have been able to cross his land to the north to access the road. In addition, it was not shown that necessity existed at the time the dominant and servient estates were severed. There is no easement by prescription. An easement by prescription must be hostile or adverse in character. Here, Plaintiff and others enjoyed the easement with consent or license of the Defendant. Express or implied permission could not ripen into an easement by prescription.
100
Degree of necessity required for an easement by necusity
1. Othen - strict necessity (some cts hold if landlocked is travelable by foot, no easment
2. Others hold if its difficult or costly
101
Can the govt have easement by necessity?
Leo sheep says no bc has the power of eminent domain
102
Next to Xs home is a golf course. Everyday golfers come onto prop to collect balls. Can they get an easement by persriptioj?
If owner puts up a fence with sign, or sues for injunction.. Can then never ripen into easement bu prescription
103
Percriptive easementsThe owner of the servient property must have actual knowledge of its use. Once knowledge of use is established, the key issue becomes
becomes one of permissive use under license as against adverse use under claim of right.
104
Matthews factors in public trust doctine cases(from raliegh)
precisely what privately-owned upland sand area will be available and required to satisfy the public's rights under the public trust doctrine will depend on the circumstances...
1Location of the dry sand area in relation to the foreshore,
2extent and availability of publicly-owned upland sand area,
3 nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand
105
Scope of easements.. Can another parcel of land use the easement if it doesnt burden?
Discussion. Nondominant property may also enjoy use of an easement, although technically improper, if it is found to be the more equitable solution in a proceeding for an injunction, which is based on the discretion of the trial court.
106
Presecriptive easements scope
If prescriptive easement aquired by pedestrian traffic, cannot be extended to motor cars
107
Prescriptive easements use must be confined to
Conisistent with the general kind of use by which the easment was created and wat a servient owner might reasonably expect to lose by failinf to interupt use
By foot ~= by car
108
Synopsis of Rule of Law. A public recreational trail was not within the scope of an existing easement for railroad purposes. Therefore, the conversion to public recreational trail was
a taking of a new easement for a new purpose, for which the landowners are entitled compensation. In addition, since the easement was abandoned, the opening of the public recreational trails was also a physical taking of the Plaintiffs' property rights.
109
In order to establish an abandonment there must be in addition to nonuser,
acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence
110
An owner doesnt use the easment regularly
Easements are not extinguished by nonuse, need something more
111
Scope of easements often allow an expansion, but do not permit
A change in use not reasonaby forseeble at the time of establishment
Railroad - roadway for transportation of persons by public path. Different nature of usage (business commercial v. Recreation)
112
Correlary to abandonment: nonuse
Some satates say abdadonment if not used for a staatutory period
113
Types of negative easements
1. Light (blocking windows)
2. Air
3. Removing support of your building
4. Interfereing w. artificial water (natural water is du by law)
5. Cnservation easments
114
Cnseravtion easements can be sha easments
Tax deductible if donated, some along golf courses
115
Condiminium features
Each condo is a fee simple absolute. The building is owned as tennants in common
116
An equitable servitude is
promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable by injunction
117
In order for the burden of an equitable servitude to bind the original promissor’s successors, four elements must be met
(1) the promise must be in a writing that satisfies the Statute of Frauds or implied from a common plan;
(2) the original parties must intend to burden successors;
(3) the promise must “touch and concern” land; and
(4) the successor must have notice of the promise.
118
Equitable servitude:Only three elements are required for the benefit to run to successors:
(1) the promise must be in writing or implied from a common plan; (2) the original parties must intend to benefit successors; and
(3) the promise must “touch and concern” land.
119
If a developer manifests a common plan or common scheme to impose uniform restrictions on a subdivision
most courts conclude that an equitable servitude will be implied in equity, even though the Statute of Frauds is not satisfied. The common plan is seen as an implied promise by the developer to impose the same restrictions on all of his retained lots.
120
racially- restrictive covenants were
unconstitutional and hence unenforceable
121
Doctrine of changed conditions
when there has been such a major change in neighborhood conditions that enforcement of the restriction would not provide substantial benefit to the dominant land, it is unenforceable under the doctrine of changed conditions.
122
The standard remedy for breach of an equitable servitude is:
| When the breach at issue is the failure to pay money, courts will usually impose a:
Injunction
a lien on the affected property, which the plaintiff may collect by foreclosing.
123
common interest community or CIC,
where their properties are subject to comprehensive land use restrictions administered by private associations. Yet the benefits of such communal living are possible only by the surrender of individual freedom
124
In a condominium, each owner
(1) holds fee simple title to an individual unit (usually a cube of airspace); and (
2) also owns an undivided interest in the common areas of the development (e.g., the building, recreational facilities, parking lot) as a tenant in common.
125
CIC covenants are presumed to be valid.
Yet a growing minority of courts will invalidate such a covenant if it is arbitrary, violates a fundamental constitutional right, or violates public policy. See, e.g., Nahrstedt v. Lakeside Village Condominium Association, 878 P.2d 1275 (Cal. 1994).
126
Covenents enforceable at law
Real covanents
127
The question of wheter a covenent runs only arises when
A person who was not party to the contract is suing or being sued
128
Horizontal privity
Privity of estate between the original coventing parties (not to use land for indust purposes)
129
Vertical privity
Privity of estate between one of the covenanting parties and a successor in interest
130
Privity between promisee and promisor
Horitzonatl privity between orig. parties
131
Privity between promisee and asignee; or promisor and his assignee
Vertical privity
132
Rst takes positiion that _______ for the burden to run at law
Horizontal privity is not required for the burden to run at law
133
Does an assignee need notice of a covent for it to be enforceable?
Yes
