Kaplan Pgs 549-567 Rights In Land Flashcards
What is a covenant that runs with the land?
A promise that attaches to the land where the covenantor promises to do or refrain from doing something on his land. Most running covenants are negative in nature
What is an example of a covenant that runs with the land?
If the landowner promises not to build anything other than a single-family residence on her premises
What is the major difference between easements and covenants?
Easements are usually positive and covenants are usually negative
When might a court find an equitable servitude instead of a covenant?
– if the plaintiff can establish all the elements for a covenant that runs, but he’s seeking equitable relief
– if the plaintiff can’t establish all the elements for a covenant that runs, but he can show the relaxed requirements for an equitable servitude
What is an implied reciprocal servitude?
When someone owns two or more lots that are situated close to each other, and sells one lot with restrictions that benefit the land that is still kept, then the servitude becomes mutual and the owner of the lot that is kept can’t do anything that’s forbidden to the owner of the lot that was sold, so that creates an implied reciprocal servitude
What are the elements that are required in order for a covenant to run with the land? ***
– writing – intent – privity – touch and concern – notice
Why must a covenant that runs with the land be in writing?
Because a covenant that runs is a promise that attaches to the land, so the SOF requires a writing
What is required for the element of intent in order for a covenant to run?
The writing must include language that shows that the parties intend the covenant to run
What is typical language used for a covenant to run with the land?
The covenantor promises “on behalf of myself and my heirs, successors and assigns, to do or refrain from doing __________ on my land for the benefit of the covenantee and his heirs, successors, and assigns.“
What are the two different types of privity involved in a covenant running with the land?
Horizontal privity and vertical privity
What is horizontal privity as an element of a covenant running with the land?
The relationship that exists between the original covenantor and covenantee. This is usually satisfied by a conveyance of land between those two people which occurs by the same deed that includes the covenant, but it can also be through a covenant created in a lease or in the transfer of an easement.
– Traditionally: horizontal privity was required for both the benefit and the burden to run with the land
– modernly: horizontal privity is not required for the benefit to run, just for the burden
What is vertical privity as an element of a covenant running with the land?
The relationship that exists between an original party to a running covenant and the successor in interest to the original party. The plaintiff must show that the successor “stepped into the shoes of“ the original party by taking the entire interest held by the original party.
Traditionally, vertical privity is required for both the benefit and the burden to run
Under vertical privity, what is required for the benefit to run with the land and the burden to run with the land?
– Burden: privity only exists when the holder of the servient estate transfers all of his interest in the servient estate to the new owner
– benefit: privity can exist when the holder of the dominant estate is transferring all or part of his interest
What is touch and concern as an element of a covenant running with the land?
A covenant must exercise direct influence on the occupation, use, or enjoyment of the premises in order for it to touch and concern the land.
Traditionally, both the benefit and the burden had to touch for either the benefit or the burden to run
What is required for the benefit to touch and concern the land and for the burden to touch and concern the land under running covenants?
– benefit: touches if it INCREASES the value of the benefitted property
– burden: touches if it DECREASES the value of the burdened property
What is required for the notice element of a covenant to run with the land?
– Originally: this was not a requirement to run
– when recording statutes were introduced: this requirement was grafted in.
The parameters of notice are determined by the relevant recording statute, and notice under the recording acts is necessary for the burden to run
If a plaintiff can’t show that a covenant was in writing, what are his options?
He can still prove the covenant through part performance or estoppel
If a plaintiff can’t show the intent that is needed for a covenant to run, what can he do?
He can show intent through a common scheme
How does a common scheme work with regard to equitable servitudes?
These usually exist in subdivisions. If a sufficient number of lots are burdened by the same covenant, the court may find that a common scheme binds all of the lots in the subdivision, including those that do not have the restriction written into the deed.
These factors show a common scheme:
– a large percentage of lots expressly burdened
– oral representations to the buyers
– statements in written ads, brochures, or maps given to the buyers
- recorded plat maps or declarations
Burdens are not imposed on lots that are conveyed before the conveyance of the first lot with an express restriction. But the burden will be imposed on lots if a common scheme was evident at the time of conveyance. The original subdivider can enforce the benefit unless he sold all the property.
Traditionally a benefit could not be enforced by a buyer who purchased his lot before the conveyance of the burdened lot. Although some jurisdictions say the existence of the common scheme is enough to show the subdivider intended to benefit all purchasers. While other jurisdictions say a previous grantee can sue a third-party beneficiary
Required elements: you don’t need any type of privity, the intent must be shown for both the benefit and the burden, touch and concern must be shown for both the benefit and the burden, and notice is determined according to the relevant recording statute
How do you terminate a covenant?
Through merger, release, abandonment, estoppel, or changed circumstances/change of neighbourhoods doctrine
What is the change of neighbourhoods doctrine that applies to termination of a land covenant?
When the neighbourhood or circumstances have changed so greatly that it no longer makes sense to enforce the restriction, the restriction will be deemed terminated
Do property owners’ associations have standing to enforce a restrictive covenant?
Yes, and when the court is examining whether they have acted properly, there is a rebuttable presumption that the association’s board members are honest, well-meaning, and acting through decisions that are informed and rationally undertaken in good faith. So a board will not have breached any duty of care for making a good-faith error of judgement
What is an easement?
An interest in the land of another
What are the different types of easements?
– affirmative
– negative
– appurtenant
– in gross
Are most easements affirmative or negative?
Affirmative
What is an affirmative easement?
Gives the holder the right to do something on the land of another.
Ie: Alpha has the right to walk across B’s land
What is a negative easement?
Something that gives the holder the right to prevent a landowner from doing something on his land. These must always be in writing
I.e.: A may prevent B from building a house that blocks light to A’s land
What are the four types of negative easements?
Light, air, water, and lateral and of subjacent support
What is an easement appurtenant?
This requires a dominant and servient estate
Ie: A has the right to cross over B’s property from the road to reach A’s property.
– A has a dominant estate because the easement benefits A. This means A has an easement appurtenant
– B has the servient estate because his land is burdened
What is an easement in gross?
This is personal in nature and results in a servient but not a dominant estate
I.e.: a utility company has a right to lay cable across A’s land. The cable helps the company. A’s land is the servient estate because it is burdened, but there is no dominant estate. The benefit of the easement is personal to the utility company, so they have an easement in gross
What is a profit?
The right to take resources from the land of another.
Examples: soil, timber, minerals.
Ie: A has the right to take gravel from B’s land
What is a license?
A privilege to do something on someone else’s property
What are the three different ways you can create an easement?
- Expressly in writing
- by implication
- by prescription
Why must an easement be in writing?
Because it is an interest in land, so the SOF requires it
What are the three different ways you can create an easement by implication?
– through prior use
– by necessity
– Implied by plat
What is required for an easement to be implied by prior use?
– Severance of title to land that was previously held in common ownership
– the use was in existence at the time of severance
– the use was apparent and could be discovered upon a reasonable inspection
– at severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract
How do you get an implied by necessity easement?
– There must be a severance of title to land that was previously held in common ownership
- and strict necessity for the easement at the time of severance
Ie: O owns land that is bordered by a road on the east and dense forest on all other sides. A lives in a house at the northwest corner and drives to and from his house on a gravel road across his land. O conveys the west half of the land, and when A tries to use the road, he finds that O has erected a barrier. A has an implied easement because O initially owned the entire tract, then severed it, and when he conveyed it, A had no direct access to his parcel because it was surrounded by O’s land and forest on all sides. A’s estate is landlocked, so that satisfies the strict necessity requirement and thus A has an easement implied by necessity
How can you have an implied by plat easement?
A purchaser that buys a lot in a platted subdivision usually acquires an implied private easement to use any streets, alleys, and parks shown on the plat
How do you acquire an easement by prescription?
There must be proof of the use of the property that is:
– open and notorious
– actual
– continuous [traditional period is 20 years]
– hostile
– exclusive [the use is not shared with the world, but the user can share use of the easement with the owner]
What is the difference between the creation of a profit and license?
– Profits can only be created expressly or by prescription
– licenses do not need a writing or consideration to be created
How do you determine the scope of an easement?
The language that creates the easement usually limits its use, and if it is present, it is enforced
If the language is not specific, the easement holder can make reasonable use of the easement
