IV. Rights in Other's Land Flashcards
What’s an easement?
An easement is the grant of a NON-POSSESSORY interest that in land that entitles someone to use the land of another (the servient land).
Can be AFFIRMATIVE (right to go onto/do something on another’s land) or NEGATIVE (right to prevent the servient landowner from doing something with land)
An affirmative easement may be created four ways: (1) by express grant, (2) by implication/prior use, (3) by necessity or (4) by prescription.
Affirmative easements can be classified as APPURTENANT or IN GROSS.
Easements are deemed to be PERPETUAL in nature unless otherwise indicated.
Describe each of the four types of easements (don’t describe by necessity and by prescription, that’s a separate flash card :-))
(1) Express - grant by written deed. If longer than one year, as an interest in land, must satisfy the statute of frauds. Must also (1) be signed by grantor, (2) manifest intent to create easement and (3) describe land & parties.
(2) Implied easements - inferred by court when (1) there were two properties (once a single tract of land, subsequently divided), (2) there was PRIOR APPARENT and CONTINUOUS use of servient land and (3) parties intended that to continue, and (4) its REASONABLY NECESSARY for use and enjoyment of dominant land.
Describe an appurtenant easement?
Burden one estate (servient estate) and benefit another (the dominant estate).
Run with the land automatically to subsequent owners UNLESS servient is transferred to a bone fide purchaser without notice.
Describe easements in gross
Easements in gross have no dominant estate are generally non-transferable (unless for commercial purpose)
Describe actual, constructive and inquiry notice?
Actual notice arises when the subsequent taker is actually aware of the easement.
Constructive notice arises when the easement has been properly recorded - meaning takers are put on constructive notice of the existence of the easement whether or not they were aware of it.
inquiry notice arises facts or circumstances would lead reasonable person to investigate further. Arises from facts discernible through visual inspection of premises.
How is an easement terminated?
(1) stated condition in express grant,
(2) merger (servient and dominant estates - if later split, won’t revert automatically),
(3) deed of release (executed by dominant holder)
(4) abandonment (physical act demonstrates non-use)
(5) estoppel (servient materially CHANGES POSITION in reliance on dominant’s ASSURANCE they’ll no longer enforce)
(6) condemnation by eminent domain
(7) destruction (not by act of servient owner)
(8) prescription/adverse possession
What is an easement by necessity?
Occurs when (1) there was once ONE UNITED property, (2) a sale results in a LANDLOCKED parcel, (3) there is absolute NECESSITY for an easement to access a public road and (4) the necessity arose when the sale occurred.
Bonus point - where is it located? Only over the part of land that blocks access.
What is an easement by prescription? There are four requirements
Acquired by
(1) ACTUAL use
(2) that is ADVERSE (i.e., hostile to the owner)
(3) OPEN and NOTORIOUS and
(4) CONTINUOUS and UNINTERUPTED for the requisite statutory period.
What is a negative easement?
Negative easements can only be created by express grant in writing, signed by grantor.
They are always appurtenant because it benefits someone (protects their enjoyment of land).
At common law there are four categories (1) light, (2) air, (3) subjacent or lateral support and (4) steam from artificial flow. In CA, “scenic view” is also recognized.
What is a profit?
Right to enter land
to remove minerals, timber, oils, etc.
*Apply exact same easement rules
What is a license?
Mere privilege
- to use another’s land for a specific purpose
- not governed by statute of frauds and can be oral or in writing (oral easement = license)
- freely revocable
E.g., Tickets, neighbor’s oral easement (common examples on exam)
What is a covenant and what is an equitable servitude?
Covenant is a promise TO DO or NOT TO DO something in relation to land THAT RUNS with the land. An equitable servitude is a promise concerning land that binds original parties and successors. The true difference between the two is the basis for relief: (1) covenant is monetary damages and (2) equitable servitude is an injunction.
What is an implied equitable survitude?
Where a devloper develops lots with a common apparent scheme, that exists before the first sale, but a lot is sold without the ES in the deed.
A defendant with notice, actual, or by inquiry (surrounding lots comply) or record (all deeds or only in their chain - courts split), will be bound.
Changed conditions defense - changes affecting entire surrounding area warrants alterations.
When will a covenant bind a successor?
For the BURDENED party:
(1) original covenant in writing
(2) touches and concerns the land
(3) intended by original parties to run with the land
(4) horizontal privity (aka NEXUS) (between original parties, e.g., landlord/tenant) and
(5) vertical privity (aka NEXUS) (non-hostile relationship between original party and successor) and
(6) notice at the time of succession (actual/imputed, record/constructive, or inquiry)
For BENEFITED party assert benefit runs, don’t need (1) horizontal privity or (2) notice.
What are the types of notice?
Actual = direct
Imputed = successor agent
Record = constructive notice if interest that’s been properly recorded
Inquiry = information would lead ordinarily prudent person to investigate further
