Easements/ covenants/ ADVERSE possession Flashcards
easement def
the grant of nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land called
SERVIENT TENEMENT
common ex of easements
1) privilege to lay utility lines on anothers land
2) easement giving its holder the right to access across a tract of land
what are the 2 types of easements
1) affirmative
2) negative
affirmative easements (most commonly)
right to do something on servient land
negative easements
entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible
what are the 4 negative easements (LASS)
1) LIGHT
2) AIR
3) SUPPORT
4) STREAM of water from an artificial flow
(5) minority: right to scenic view
how MUST negative easements be created
EXPRESSLY IN WRITING SIGNED BY GRANTOR
is there a natural or automatic right to negative easement
NO must be granted expressly in writing signed by grantor
what is easement in appurtenant
IT TAKES 2
when it benefits its holder in his physical use or enjoyment of his property.
how to know when it is an easement in appurtenant
IT TAKES 2 PARCELS
who gets benefit in easement in appurtenant
dominant tenament
who gets burden in easement in appurtenant
servient tenement
what is an easement in gross
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
when will you know if it is an easement in gross
ONLY 1 land
common examples of an easement in gross
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
does an appurtenant easement pass AUTOMATICALLY with the dominant tenement
YES
regardless of w/e it is even mentioned in the conveyance
does the burden of the easement appurtenant also pass automatically with the servient estate
YES
X/C if the new owner is a BFP w/o notice
is an easement in gross transferable
generally no
x/c when an easement in gross is transferable
commercial purposes
how to create an AFFIRMATIVE EASEMENT (PING)
1) PERSCRIPTION (adverse possession)
2) IMPLICATION
3) NECESSITY
4) GRANT
how to create an affirmative easement by grant
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”
how to create an affirmative easement by IMPLICATION (also known as easement implied from existing use)
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
how to create an affirmative easement by NECESSITY
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
how to create an affirmative easement by PRESCRIPTION (adverse possession) (COAH)
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
what is SOL for adverse possession in IL
20 years
does permission defeat the acquisition of an easement by prescription
YES b/c needs to be hostile
how is the scope of the easement determined by
by terms that created it
can one party unilaterally expand the use of easement
NO. unilateral expansion is NOT ALLOWED
how to terminate an easement (END CRAMP)
1) ESTOPPEL
2) NECESSITY
3) DESTRUCTION OF THE SERVIENT LAND
4) CONDEMNATION OF THE SERVIENT ESTATE
5) RELEASE
6) ABANDONMENT
7) MERGER
8) PRESCRIPTION
how to end an easement with ESTOPPEL
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
how to end an easement with NECESSITY
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
how to end an easement with DESTRUCTION of servient land
other than through the willful conduct of the servient owner: ends easement
how to end an easement with CONDEMNATION of servient estate
by eminent domain
how to end an easement with RELEASE
a written release given by easement holder to the servient owner
how to end an easement with ABANDONMENT
the easement holder must demonstrate by PHYSICAL ACTION the intent to never use easement again
what does ending an easement by abandonment require
PHYSICAL ACTION by easement holder
how to end an easement with MERGER (also known as unity of ownership)
the easement is extinguished when title to easement and title servient land becomes vested in 1 person
if complete unity of title is achieved, the easement is extinguished under merger. Even though there may be later separation of title
EASEMENT IS NOT REVIVED
how to end an easement with PRESCRIPTION
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
what is license
a MERE privilege to enter land for a dillenated purpose
- revocable at will by licenseor
are licenses subject to SOF
NO
- thus do NOT need a writing to create a license
are licenses FREELY REVOCABLE
YES, at will of the licensor
when are licenses NOT freely revocable by licensor
ESTOPPEL applies to bar revocation
what are the 2 classic cases of licenses
1) ticket cases: freely revocable can bar your entry even if others are let in
2) neighbors talking by fence:
what does an ORAL easement creates instead since it is not in writing
a freely revocable license
when will ESTOPPEL bar revocation only when the licensee has done what
invested
1) SUBSTANTIAL MONEY or
2) LABOR OR BOTH in reasonable reliance on the license’s continuation
what is a profit entitled to
profit entitles its holder to enter the servient land and take from it
1) soil or some product of soil
- minerals, timber, oil etc
does the profit share all rules of easement
yes
what is a covenant
a promise to do something or to NOT do something to land
what is difference b/w covenant and easement
covenant= UNLIKE easement b/c it is not the grant of property interest, but rather CONTRACT or promise regarding land
what are the 2 types of covenants
1) negative covenants (restrictive covenants)
2) affirmative convenants
restrictive covenants
is a promise to refrain from doing something related to land
ex: not to build for commercial purposes
affirmative covenants
promise to do something to land
how to know w/e to construe a given promise as a COVENANT or as an EQUITABLE SERVITUTE
on the basis of remedy P seeks
1) covenant= money damages (at law)
2) equitable servitude: injunction relief
what side do you analyze first to determine if the covenant will run with the land
always analyze the burdened side first
what side is harder to run with land the burdened side or benefit side
harder for the BURDEN TO RUN than for the benefit to run
what elements are needed for the BURDEN to run with land (WITHN)
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
what is the TOUCH and concern requirement for burden to run with the land
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
what is the HORIZONTAL and vertical privity both required for burden to run with the land requirement
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
what is required for horizontal privity- refers nexus b/w A & B original parties it requires that succession of estate which means what
- that they were in a grantor/grantee or, landlord/ tenant or, mortgage or mortgagee relationship
is horizontal privity hard to establish
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
what is required for vertical privity for burden to run with the land
nexus b/w A and A1
requires NON HOSTILE NEXUS
Ex: contracts, divesee, descendant
when is the only time vertical privity is ABSENT
when there is adverse possession
- cannot be done hostile
when does the BENEFIT run with the land (WITV)
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)
is horizontal privity required for a BENEFIT to run with the land
NO. This is why it is easier to establish
equitable servitude
a promise that equity will enforce against sucessors
what is equitable servitude accompanied by
INJUNCTIVE RELIEF
what is required to create an equitable servitude (WITNes)
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
is privity required to bind sucessors for equitable servitude
NO
when can implied equitable servitude be applied (general or common scheme doctrine) 2 elements
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
what are 3 forms of notice
1) actual notice: D knew
2) inquiry notice: hood conforms to common restriction
3) record notice:
equitable defenses to enforcement of an equitable servitude
changed circumstances
changed circumstances defense to enforcement of an equitable servitude
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
what is never good enough for changed circumstances of equitable servitude
mere pockets of change
adverse possession what it means
possession for a statutory prescribed period of time can if certain elements met RIPPEN INTO TITLE
what acronyom to think of for adverse possession
COAH
elements for adverse possession
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
is the posessor’s SUBJECTIVE state of mind relevant for adverse possession
NOOOOOO. completely irrelevant
- majority: does not matter w.e the possessor believes she is on her own land or knows she is trespassing
when can TACKING be allowed for Adverse Possession for stautory period
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
what is required for tacking
PRIVITY
what is privity for adverse possession for tacking
any NON HOSTILE NEXUS such as contract, deed, will
what disabilities toll the SOL period for adverse possession
1) insanity
2) infancy
3) imprisonment
when must the disability occur to toll he adverse possession SOL period
SOL will not run against a true owner who is afflicted by a disability at START OF ADVERSE POSSESSION
is there a requirement of EXCLUSIVE use to obtain an easement by prescription
NO.
- Exclusivity is ONLY required in cases of ADVERSE POSSESSION which requires title while
- Adverse USE will only result in prescriptive by easement
can an easement appurtneant convey apart from the dominant teenement an easement?
NO an attempt to convey an easement appurtenant apart from dominant tenement is ineffective (must transfer property with easement)
if an attempt to convey an easement appurtenant apart form the dominant tenement extinguish the easement.
NO. the easement continues despite the attempted conveyance and will pass with the ownership of the dominant tenement
does mere nonuse of an easement extinguish an easement
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
does an easement appurtenance transfer with the benefited land even if not mentioned in conveyance
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
can there be a conveyance of the easement right a part from possession for the dominant tenement
NO
-cannot transfer easement w/o transfer of land
when an owner of an easement uses it in a way that exceeds the legal scope, does it terminate the easement?
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
ex: of licensees
think tort
- social guests, delivery persons, plumbers etc
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
results in the creation of a license. Can be revoked by will.
what happens when a person misuses the profits
misuse of a profit, unduly increasing the burden (typically through an improper apportionment) will be to EXTINGUISH the profit
difference b/w exceeding scope of easement and profits
1) easement: party can enjoin the other, does not terminate easement
2) profit: terminates profit
when does an easement transfer with the land
an easement appartuent
- generally gross does not x/c commercial purposes
how do covenants/ servitutes differ from easements
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
Is it easier to enforce an equitable servitude or real covenants
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
when does the BENEFIT run with the land for equitable servitude
1) written
2) intent
3) touch and concern the land
4 ) NOTICE:
when does the BENEFIT run with the land for REAL COVENANTS
1) written
2) intent
3) touch and concern the land
4) vertical privitiy:
what is horizontal privity
original granting parties must have a relationship
- grantor/grantee, landlord/tenant, mortgagee/mortgagor
generally what is equitable servitude
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
what is the x/c for where an easement does not make title unmarketable
where easement is BENEFICIAL easement that was visible or KNOWN to the B does not constitute an encumbrance
when will the burden of easement not pass automatically with the servient estate
BFP w/o NOTICE
(1) actual
2) inquiry
3) record
GR: easement appurtenant pass with land benefit
GR: ALWAYS passes with land, regardless of w.e it is mentioned in the conveyance
