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Easements/ covenants/ ADVERSE possession Flashcards

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1
Q

easement def

A

the grant of nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land called
SERVIENT TENEMENT

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2
Q

common ex of easements

A

1) privilege to lay utility lines on anothers land

2) easement giving its holder the right to access across a tract of land

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3
Q

what are the 2 types of easements

A

1) affirmative

2) negative

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4
Q

affirmative easements (most commonly)

A

right to do something on servient land

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5
Q

negative easements

A

entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible

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6
Q

what are the 4 negative easements (LASS)

A

1) LIGHT
2) AIR
3) SUPPORT
4) STREAM of water from an artificial flow
(5) minority: right to scenic view

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7
Q

how MUST negative easements be created

A

EXPRESSLY IN WRITING SIGNED BY GRANTOR

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8
Q

is there a natural or automatic right to negative easement

A

NO must be granted expressly in writing signed by grantor

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9
Q

what is easement in appurtenant

A

IT TAKES 2

when it benefits its holder in his physical use or enjoyment of his property.

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10
Q

how to know when it is an easement in appurtenant

A

IT TAKES 2 PARCELS

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11
Q

who gets benefit in easement in appurtenant

A

dominant tenament

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12
Q

who gets burden in easement in appurtenant

A

servient tenement

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13
Q

what is an easement in gross

A

confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.
- servient land is burdened but no benefited or dominant tenement

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14
Q

when will you know if it is an easement in gross

A

ONLY 1 land

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15
Q

common examples of an easement in gross

A

1) right to place billboard on anothers lot
2) right to swim in anothers pond
3) right to lay power lines on anothers land
- servient land is burdened but no dominant tenement

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16
Q

does an appurtenant easement pass AUTOMATICALLY with the dominant tenement

A

YES

regardless of w/e it is even mentioned in the conveyance

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17
Q

does the burden of the easement appurtenant also pass automatically with the servient estate

A

YES

X/C if the new owner is a BFP w/o notice

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18
Q

is an easement in gross transferable

A

generally no

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19
Q

x/c when an easement in gross is transferable

A

commercial purposes

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20
Q

how to create an AFFIRMATIVE EASEMENT (PING)

A

1) PERSCRIPTION (adverse possession)
2) IMPLICATION
3) NECESSITY
4) GRANT

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21
Q

how to create an affirmative easement by grant

A

over one year must be in writing that complies with the formal elements of a deed
- SOF
writing to be evidence the easement is called “deed of easement”

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22
Q

how to create an affirmative easement by IMPLICATION (also known as easement implied from existing use)

A

1) the previous use was apparent and

2) the parties expected it would continue b/c it is reasonably necessary to dominant lands use and enjoyment

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23
Q

how to create an affirmative easement by NECESSITY

A

the landlocked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of his land
1) with no way out
x/c over part of grantors remaining land

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24
Q

how to create an affirmative easement by PRESCRIPTION (adverse possession) (COAH)

A

an easement may be acquired by satisfying the elements of adverse possession

1) CONTINUOUS USE for statutory period
2) OPEN AND NOTOROIUS
3) ACTUAL USE that need not be exclusive
4) HOSTILE use, w/o servient owners consent

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25
Q

what is SOL for adverse possession in IL

A

20 years

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26
Q

does permission defeat the acquisition of an easement by prescription

A

YES b/c needs to be hostile

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27
Q

how is the scope of the easement determined by

A

by terms that created it

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28
Q

can one party unilaterally expand the use of easement

A

NO. unilateral expansion is NOT ALLOWED

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29
Q

how to terminate an easement (END CRAMP)

A

1) ESTOPPEL
2) NECESSITY
3) DESTRUCTION OF THE SERVIENT LAND
4) CONDEMNATION OF THE SERVIENT ESTATE
5) RELEASE
6) ABANDONMENT
7) MERGER
8) PRESCRIPTION

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30
Q

how to end an easement with ESTOPPEL

A

here, servient owner materially changes his or her position in a reasonable reliance on the easement holder’s assurances that the easement WILL NOT BE ENFORCED

1) some CONDUCT OR ASSERTION by the owner of easement ,
2) a REASONABLE RELIANCE by the owner of the servient tenement,
3) coupled with a CHANGE OF POSITION

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31
Q

how to end an easement with NECESSITY

A

easements created by necessity expire as
1) need ends
- expire as soon as the necessity ends
However, if the easement attributable to necessity, was nonetheless created by EXPRESS GRANT
2) it persist even when the need ends

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32
Q

how to end an easement with DESTRUCTION of servient land

A

other than through the willful conduct of the servient owner: ends easement

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33
Q

how to end an easement with CONDEMNATION of servient estate

A

by eminent domain

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34
Q

how to end an easement with RELEASE

A

a written release given by easement holder to the servient owner

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35
Q

how to end an easement with ABANDONMENT

A

the easement holder must demonstrate by PHYSICAL ACTION the intent to never use easement again

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36
Q

what does ending an easement by abandonment require

A

PHYSICAL ACTION by easement holder

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37
Q

how to end an easement with MERGER (also known as unity of ownership)

A

the easement is extinguished when title to easement and title servient land becomes vested in 1 person

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38
Q

if complete unity of title is achieved, the easement is extinguished under merger. Even though there may be later separation of title

A

EASEMENT IS NOT REVIVED

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39
Q

how to end an easement with PRESCRIPTION

A

the SERVIENT OWNER may extinguish by adverse possession (COAH)

1) continuous interference during statutory period
2) OPEN and NOTORIOUS
3) ACTUAL
4) HOSTILE to easement holder
- interference of the easement holder

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40
Q

what is license

A

a MERE privilege to enter land for a dillenated purpose

- revocable at will by licenseor

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41
Q

are licenses subject to SOF

A

NO

- thus do NOT need a writing to create a license

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42
Q

are licenses FREELY REVOCABLE

A

YES, at will of the licensor

43
Q

when are licenses NOT freely revocable by licensor

A

ESTOPPEL applies to bar revocation

44
Q

what are the 2 classic cases of licenses

A

1) ticket cases: freely revocable can bar your entry even if others are let in
2) neighbors talking by fence:

45
Q

what does an ORAL easement creates instead since it is not in writing

A

a freely revocable license

46
Q

when will ESTOPPEL bar revocation only when the licensee has done what

A

invested

1) SUBSTANTIAL MONEY or
2) LABOR OR BOTH in reasonable reliance on the license’s continuation

47
Q

what is a profit entitled to

A

profit entitles its holder to enter the servient land and take from it

1) soil or some product of soil
- minerals, timber, oil etc

48
Q

does the profit share all rules of easement

A

yes

49
Q

what is a covenant

A

a promise to do something or to NOT do something to land

50
Q

what is difference b/w covenant and easement

A

covenant= UNLIKE easement b/c it is not the grant of property interest, but rather CONTRACT or promise regarding land

51
Q

what are the 2 types of covenants

A

1) negative covenants (restrictive covenants)

2) affirmative convenants

52
Q

restrictive covenants

A

is a promise to refrain from doing something related to land
ex: not to build for commercial purposes

53
Q

affirmative covenants

A

promise to do something to land

54
Q

how to know w/e to construe a given promise as a COVENANT or as an EQUITABLE SERVITUTE

A

on the basis of remedy P seeks

1) covenant= money damages (at law)
2) equitable servitude: injunction relief

55
Q

what side do you analyze first to determine if the covenant will run with the land

A

always analyze the burdened side first

56
Q

what side is harder to run with land the burdened side or benefit side

A

harder for the BURDEN TO RUN than for the benefit to run

57
Q

what elements are needed for the BURDEN to run with land (WITHN)

A

1) WRITING: promise must be in writing
2) INTENT: must have intent burden will run
3) TOUCH and concern the land
4) HORIZONTAL and vertical privity are BOTH required for the burden to run
5) NOTICE

58
Q

what is the TOUCH and concern requirement for burden to run with the land

A

promise must affect the parties’ legal relationship as LAND OWNERS and not simply as community at large
- ex: home owners association, covenants not to compete

59
Q

what is the HORIZONTAL and vertical privity both required for burden to run with the land requirement

A

horizontal privity- refers nexus b/w A & B original parties

  • it requires that sucession of estate, MEANING
  • that they were in a grantor/grantee or, landlord/ tenant or, mortgage or mortgagee relationship
60
Q

what is required for horizontal privity- refers nexus b/w A & B original parties it requires that succession of estate which means what

A
  • that they were in a grantor/grantee or, landlord/ tenant or, mortgage or mortgagee relationship
61
Q

is horizontal privity hard to establish

A

yes b/c wont be - that they were in a grantor/grantee or, landlord/ tenant or, mortgage or mortgagee relationship and therefore burden will not run with the land

62
Q

what is required for vertical privity for burden to run with the land

A

nexus b/w A and A1
requires NON HOSTILE NEXUS
Ex: contracts, divesee, descendant

63
Q

when is the only time vertical privity is ABSENT

A

when there is adverse possession

- cannot be done hostile

64
Q

when does the BENEFIT run with the land (WITV)

A

1) WRITTEN: original promise must be in writing
2) INTENT: intended for it to run with the land
3) TOUCH AND CONCERN LAND: promise effects parties as land owners
4) VERTICAL PRIVITY: non hostile nexus (not adverse possession)

65
Q

is horizontal privity required for a BENEFIT to run with the land

A

NO. This is why it is easier to establish

66
Q

equitable servitude

A

a promise that equity will enforce against sucessors

67
Q

what is equitable servitude accompanied by

A

INJUNCTIVE RELIEF

68
Q

what is required to create an equitable servitude (WITNes)

A

1) WRITING: generally original promise was in writing
2) INTENT: parties intended promise would bind sucessors
3) TOUCH AND CONCERN: promise effects promise as land owners
4) NOTICE: successors of BURDENED land had notice of promise

69
Q

is privity required to bind sucessors for equitable servitude

A

NO

70
Q

when can implied equitable servitude be applied (general or common scheme doctrine) 2 elements

A

1) when sales began subdivider had GENERAL SCHEME of residnetial devolpment which included D’s
2) D’s lot holder had NOTICE OF PROMISE in prior deeds

71
Q

what are 3 forms of notice

A

1) actual notice: D knew
2) inquiry notice: hood conforms to common restriction
3) record notice:

72
Q

equitable defenses to enforcement of an equitable servitude

A

changed circumstances

73
Q

changed circumstances defense to enforcement of an equitable servitude

A

the changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so
1) pervasisve that an entire area has changed

74
Q

what is never good enough for changed circumstances of equitable servitude

A

mere pockets of change

75
Q

adverse possession what it means

A

possession for a statutory prescribed period of time can if certain elements met RIPPEN INTO TITLE

76
Q

what acronyom to think of for adverse possession

A

COAH

77
Q

elements for adverse possession

A

1) CONTINUOUS: uninterrupted for entire statutory period
2) OPEN AND NOTORIOUS: sort of possession usual owner would make under circumstances
3) ACTUAL entry giving exclusive possession (possessor not sharing with owner)
4) HOSTILE possessor not have owners consent to be there

78
Q

is the posessor’s SUBJECTIVE state of mind relevant for adverse possession

A

NOOOOOO. completely irrelevant

- majority: does not matter w.e the possessor believes she is on her own land or knows she is trespassing

79
Q

when can TACKING be allowed for Adverse Possession for stautory period

A

1 adverse possessor may tack on his time with the land predecessors time as long as
PRIVITY which is statisfied by
2) any NON HOSTILE NEXUS such as contract, deed, will

80
Q

what is required for tacking

A

PRIVITY

81
Q

what is privity for adverse possession for tacking

A

any NON HOSTILE NEXUS such as contract, deed, will

82
Q

what disabilities toll the SOL period for adverse possession

A

1) insanity
2) infancy
3) imprisonment

83
Q

when must the disability occur to toll he adverse possession SOL period

A

SOL will not run against a true owner who is afflicted by a disability at START OF ADVERSE POSSESSION

84
Q

is there a requirement of EXCLUSIVE use to obtain an easement by prescription

A

NO.

  • Exclusivity is ONLY required in cases of ADVERSE POSSESSION which requires title while
  • Adverse USE will only result in prescriptive by easement
85
Q

can an easement appurtneant convey apart from the dominant teenement an easement?

A

NO an attempt to convey an easement appurtenant apart from dominant tenement is ineffective (must transfer property with easement)

86
Q

if an attempt to convey an easement appurtenant apart form the dominant tenement extinguish the easement.

A

NO. the easement continues despite the attempted conveyance and will pass with the ownership of the dominant tenement

87
Q

does mere nonuse of an easement extinguish an easement

A

NO., mere nonuse does not extinguish an easement. May be extinguished by abandonment, which constitutes the easement holder must demonstrate physical ACTION an intent to PERMANENTLY abandon the easement

88
Q

does an easement appurtenance transfer with the benefited land even if not mentioned in conveyance

A

YES. regardless oh w/e the easement is mentioned in the conveyance
- all who possess title to the dominant tenement become entitled to the benefit of the easement

89
Q

can there be a conveyance of the easement right a part from possession for the dominant tenement

A

NO

-cannot transfer easement w/o transfer of land

90
Q

when an owner of an easement uses it in a way that exceeds the legal scope, does it terminate the easement?

A

NO. The remedy of the servient landowner is an INJUNCTION of the excuse use and possible damages if to land.
- exceeding scope of easement does not terminate the easement or give the servient landowner power to terminate

91
Q

ex: of licensees

A

think tort

- social guests, delivery persons, plumbers etc

92
Q

what happens if a party attempts to create an easement longer than 1 year but does not put it in writing and says it only ORALLY

A

results in the creation of a license. Can be revoked by will.

93
Q

what happens when a person misuses the profits

A

misuse of a profit, unduly increasing the burden (typically through an improper apportionment) will be to EXTINGUISH the profit

94
Q

difference b/w exceeding scope of easement and profits

A

1) easement: party can enjoin the other, does not terminate easement
2) profit: terminates profit

95
Q

when does an easement transfer with the land

A

an easement appartuent

- generally gross does not x/c commercial purposes

96
Q

how do covenants/ servitutes differ from easements

A

1) covenatnts/ servitudes: WRITTEN PROMISE to do something ON THE LAND or promise to not do something.
2) easements: nonpossessory right to allow to use part of land

97
Q

Is it easier to enforce an equitable servitude or real covenants

A

equitable servitude, do not need to

(a) Written
(b) INTENT: of agreement to run with the land
(c) TOUCH the land and
(d) NOTICE

real covenants:

(a) WRITTEN:
(b) INTENT
(c) TOUCH the land
(d) NOTICE
(e) HORIZONTAL privity: grantor/grantee, landlord/tenant, mortgagee/mortgagor
(f) VERTICAL privity: received the entire estate that the original party had to give

98
Q

when does the BENEFIT run with the land for equitable servitude

A

1) written
2) intent
3) touch and concern the land
4 ) NOTICE:

99
Q

when does the BENEFIT run with the land for REAL COVENANTS

A

1) written
2) intent
3) touch and concern the land
4) vertical privitiy:

100
Q

what is horizontal privity

A

original granting parties must have a relationship

- grantor/grantee, landlord/tenant, mortgagee/mortgagor

101
Q

generally what is equitable servitude

A

a covenant that REGARDLESS of w/e it runs with he land , equity will enforce against the assignee of the burdened land who have NOTICE of the covenant

102
Q

what is the x/c for where an easement does not make title unmarketable

A

where easement is BENEFICIAL easement that was visible or KNOWN to the B does not constitute an encumbrance

103
Q

when will the burden of easement not pass automatically with the servient estate

A

BFP w/o NOTICE

(1) actual
2) inquiry
3) record

104
Q

GR: easement appurtenant pass with land benefit

A

GR: ALWAYS passes with land, regardless of w.e it is mentioned in the conveyance

bar real property (9 decks)

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