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10. Real Property > Easements and covenants > Flashcards

Easements and covenants Flashcards

1
Q

What are the four ways you can create an affirmative easement?

A
  1. Prescription (use that is continuous, open, notorious, actual under claim of right that is hostile for 10-year [NY] statutory period)
  2. Implication (at time land severed, use of one part existed from which can be inferred easement permitting continuation was intended)
  3. Necessity (division of tract deprives one lot of access out)
  4. Grant (writing signed by grantor)
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2
Q

Who is bound by affirmative easements?

A
  1. Easement appurtenant transferred automatically with dominant tenement
  2. Easement in gross for commercial purposes is assignable
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3
Q

What is the remedy for breach of affirmative easement?

A

Injunction or damages

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4
Q

What are the four negative easements?

A
  1. Light
  2. Air
  3. Support
  4. Stream water
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5
Q

How do we create negative easements?

A

Only by writing signed by grantor

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6
Q

What is the remedy for breach of a negative easement?

A

Injunction or damages

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7
Q

How is a covenant created?

A

By writing signed by grantor

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8
Q

The covenant’s or burden of promise will run to successor of:

A

Burden of promise will run to successor of burdened lot if:

  1. Writing
  2. Intent
  3. Touch and concern
  4. Horizontal and vertical privity
  5. Notice

Benefit of promise will run to successor of benefited lot if:

  1. Writing
  2. Intent
  3. Touch and concern
  4. Vertical privity
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9
Q

What is the remedy for breach of real covenant?

A

Damages

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10
Q

What is an equitable servitude?

A

Describes a nonpossessory interest in land that operates like a covenant running with the land

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11
Q

When are successors bound by an equitable servitude?

A

Successors bound if:

  1. Writing
  2. Intent
  3. Touch and concern
  4. Notice
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12
Q

How do you create an equitable servitude?

A

Writing signed by grantor (unless implied by General Scheme Doctrine)

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13
Q

What is the remedy for a breach of equitable servitude?

A

Injunction (as opposed to damages w/ covenants)

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14
Q

What is the general scheme doctrine?

A

In subdivision, residential restriction contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction if:

  1. At start of subdividing grantor had common scheme
  2. Unrestricted lot holders had notice

Creates reciprocal negative servitude

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15
Q

What does appurtenant mean compared to gross?

A
  1. Appurtenant: benefits holder in physical use or enjoyment of property
  2. Gross: confers upon holder only personal or pecuniary advantage not related to use or enjoyment of land
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16
Q

What are the ways that an easement is terminated?

A
  1. Estoppel (reliance that easement no longer will be used)
  2. Necessity ends
  3. Destruction of servient land
  4. Condemnation of servient estate by eminent domain
  5. Release from holder
  6. Abandonment by physical action
  7. Merger (2 estates titled to 1 person)
  8. Prescription (servient adversely possesses)
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17
Q

What is a license?

A
  1. Privilege to enter another’s land for delineated purpose
  2. Not subject to SoF
  3. Freely revocable at will unless estoppel
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18
Q

What is a covenant?

A
  1. Promise to do or not do something related to land

2. Unlike easement, contractual, not property interest

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19
Q

What is a profit in relation to land?

A
  1. Entitles holder to enter servient land and take soil or substance of the soil
  2. Shares all rules of easements
20
Q

How do I tell covenants and equitable servitudes apart?

A
  1. Covenant: money damages

2. Equitable servitude: injunction

21
Q

How does something ‘touch and concern’ the land?

A
  1. Promise must affect parties’ legal relations as landowners, not simply members of community at large
  2. Covenants to pay money to be used in connection with the land and covenants not to compete DO touch and concern the land
22
Q

What are the elements of adverse possession?

A
  1. Continuous
  2. Open and notorious
  3. Actual
  4. Hostile

MS: possessor’s state of mind irrelevant
NY: possessor must have good faith belief that land he is occupying is his

23
Q

Can I tack on to another adverse possessor’s time?

A

One adverse possessor may tack onto his time his predecessor’s time if privity, satisfied by any non-hostile nexus such as blood, contract, deed, will

Not allowed when there has been ouster

24
Q

If between contract and closing, property destroyed through no fault of either party…

A

MS: buyer bears risk of loss unless contract otherwise
NY: if buyer without fault, risk of loss remains with seller until buyer has title or takes possession

25
Q

What are 2 implied promises in every land contract?

A
  1. Seller promises to provide marketable title at closing (free from reasonable doubt); unmarketable if:
    (a) relies on adverse possession
    (b) not unencumbered fee simple
    (c) zoning violation
  2. Seller promises not to make any false statements of material fact (must disclose latent material defects)
26
Q

What is the process of transfer of title through deed?

A
  1. Lawful execution: must be in writing, signed, with description of the land (need not be perfect)
  2. Delivery: standard of present intent (not necessarily physical delivery)
    (a) if delivered with oral condition, condition is void
    (b) delivery by escrow is okay
27
Q

What is a bona fide purchaser?

A
  1. Purchases property for value

2. Without notice someone else got there first

28
Q

What is the shelter rule?

A

One who takes from a bona fide purchaser will prevail against anyone that the transferor would have prevailed against

29
Q

What are parties’ rights in mortgage?

A
  1. Mortgagor: title and right to possess

2. Mortgagee: lien

30
Q

What are defenses to rights in mortgage?

A
  1. Material alteration
  2. Duration
  3. Fraud in factum
  4. Incapacity
  5. Illegality
  6. Infancy
  7. Insolvency
31
Q

What is the effect of a foreclosure on junior/senior interests?

A
  1. Junior: necessary parties; paid with funds; terminates interest in property
  2. Senior: does not affect; can foreclose on land later
32
Q

What is a purchase money mortgage?

A

If properly recorded, first priority as to financed parcel rests with bank

33
Q

What is redemption in equity if you are getting all foreclosed?

A
  1. Universally recognized up to date of sale
  2. Debtor has right to redeem land by paying missed payments, interest, costs
    (a) if acceleration clause, must pay full balance
  3. CANNOT WAIVE RIGHT TO REDEEM IN MORTGAGE
34
Q

What is statutory redemption?

A
  1. Recognized in 25 states, NOT NY
  2. Right to redeem AFTER foreclosure sales
  3. Right to possess during statutory period
35
Q

What is lateral support?

A

If land improved by buildings and adjacent landowner’s excavation causes that improved land to cave in, excavator liable only if negligent

For strict liability, P must show his improvements did not contribute to land’s collapse

36
Q

What is the riparian doctrine?

A
  1. Water belongs to those who own the land bordering the watercourse
  2. Share right of reasonable use of water
  3. Liable if use unreasonably interferes with others’
37
Q

What is the prior appropriation water doctrine?

A
  1. Water belongs initially to state
  2. Right to divert and use can be acquired by individual regardless if riparian owner
  3. First in time, first in right
38
Q

Who has rights to ground water?

A

Surface owner entitled to make reasonable, non-wasteful use of groundwater

39
Q

Who has rights to surface water?

A

Landowner may change drainage or make other changes/improvements to his land to combat flow of surface water (many courts: cannot unnecessarily harm others’ land)

Surface water is common enemy

40
Q

What is trespass?

A
  1. Invasion of land by tangible, physical object

2. Bring action for ejectment to remove

41
Q

What is private nuisance?

A
  1. Substantial and unreasonable interference with another’s use and enjoyment of land
  2. No nuisance when problem is result of supersensitivity of or specialized use by P
42
Q

What is eminent domain?

A
  1. Government’s power to take private property for public use in exchange for just compensation
  2. Implicit/regulatory taking: economic wipeout of investment
  3. Remedy: government must either
    (a) compensate owner for taking
    (b) terminate regulation and pay damages
43
Q

What is zoning?

A
  1. Pursuant to police powers, government may enact statutes to reasonably control land use
  2. Once lawful, existing use now deemed nonconforming by new zoning ordinance cannot be eliminated all at once unless just compensation paid
44
Q

What is variance in relation to zoning?

A
  1. Principal means to achieve flexibility in zoning
  2. Must show
    (a) undue hardship
    (b) won’t work detriment to surrounding property values
45
Q

What are exactions?

A
  1. Those amenities government seeks in exchange for granting permission to build
  2. To be constitutional, must be
    (a) reasonably related in nature and scope to impact of proposed development

10. Real Property (6 decks)

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