LAND USE

Question 1

Easements

Answer 1

An easement is a non-possessory interest in land.

By granting an easement, a landowner gives another the right to use his land for a particular purpose.

Question 2

Easement Appurtenant

Answer 2

An easement appurtenant attaches to the land, which means any owner of this land may benefit from the easement.

Subsequent landowners may benefit from the easement as long as they have notice of the easement.

Question 3

Easements in Gross

Answer 3

attaches to and benefits a specific owner, not land.

These easements do not transfer to subsequent landowners

Question 4

Express Easement

Answer 4

An easement may be created expressly through either grant or reservation.

Question 5

Express Grant of Easement

Answer 5

an express grant of an easement must be in writing and satisfy the SOF, be signed by the grantor, identify the parties and property, and demonstrate the grantor’s intent

Question 6

Express Reservation of an easement

Answer 6

express reservation of an easement is created when the servient estate’s holder give the easement holder title to the property but reserves for himself the right to use the land for a specific purpose

Question 7

Easement by Necessity

Answer 7

created if

1. the original piece of land is subdivided and
2. there is no access to the easement because the subdivision is landlocked

Does not need to satisfy the SOF

Question 8

Easement by Implication

Answer 8

Most easements by implication arise out of a pre-existing use.

This occurs if there is a (1) common owner’s (2) pre-existing use that is (3) open and continuous after subdivision and (4) reasonably necessary to the dominant’s estate’s use and enjoyment

Does not need to satisfy the SOF

Question 9

Easement by Prescription

(adverse possession)

Answer 9

may be acquired through continuous, actual, open, and notorious, and hostile use for the statutory period

Question 10

Easement by Estoppel

Answer 10

Reasonable and detrimental reliance on a servient estate holder’s permission may create an easement by estoppel

Question 11

Negative Easement

Answer 11

A negative easement restricts an easement holder’s use of the land and must be created through a writing signed by a grantor.

Question 12

Easement Termination

Release

Answer 12

An easement holder may terminate his easement through a writing which satisfies the SOF and expressly releases his right.

Question 13

Easement Termination

Merger

Answer 13

An easement is terminated by merger when either the dominate estate acquires title to the servient estate or vice versa

Question 14

Easement Termination

Severance

Answer 14

When the holder of an easement appurtenant attempts to convey or transfer his right, this terminates his easement

Question 15

Easement Termination

Abandonment

Answer 15

An easement holders terminates his easement when his affirmative acts demonstrate his intent to abandon his easement right.

Question 16

Licenses

Answer 16

A license grants another the non-possessory right to enter his land for a specific purpose.

A license is freely revocable unless estoppel occurs.

A license need not satisfy the Statute of Frauds.

Therefore, a license may be created by an oral grant.

Question 17

Real Covenants

Answer 17

A real covenant is a written promise pertaining to land use.

Real covenants can be affirmative or negative.

Real covenants have two components: the burden, which is the duty to perform, and the benefit, which imparts the duty on another.

Real covenants may run with the land, so future owners of the property may be burdened or benefited by the covenant.

A real covenant runs with the land if the following elements are met

1. writing (SOF), 2. intent, 3. touch and concern, 4. notice, and 5. privity

Question 18

Real Covenants - Writing

Answer 18

A real covenant must be in writing and satisfy the Statue of Frauds

Question 19

Real Covenants - Intent

Answer 19

The parties must explicitly or implicitly demonstrate intent for the covenant to run with the land.

Question 20

Real Covenants - Touch and Concern

Answer 20

A real covenant touches and concerns the land when it is directly related to the use of the land.

The benefit or burden must have an effect on both parties.

Negative Covenants - run with the land if they restrict the land use

Affirmative Covenants - run with the land if they require certain land use

Question 21

Real Covenants - Notice

Answer 21

Notice is only required for the burden to run.

A bona fide purchase without notice of a burden will take the land without the burden if he is protected by the recording act.

Question 22

Real Covenants - Privity

Horizontal Privity

Answer 22

Horizontal Privity is only required for the burden to run. Horizontal privity requires that, at that time the original parties entered into the agreement, they shared some interest in land, independent of the covenant.

Question 23

Real Covenants - Privity

Vertical Privity

Answer 23

vertical privity is required for both a benefit and a burden to run.

Vertical privity is the relationship between one of the original parties and a subsequent owner of the land.

Burden - For the burden to run, the subsequent owner must hold an estate of the same duration as the original party from which he acquired the land.

Benefit - for the benefit to run, the subsequent owner must hold an estate that is part of the original party’s interest in the land

Question 24

Real Covenant

Termination

Answer 24

A covenant may be terminated in one of the following ways:

(i) release

(ii) merger

(iii) abandonment

(iv) estoppel

Question 25

Equitable Servitudes

Answer 25

An equitable servitude is a covenant that is enforced through an equitable remedy (injunction).

For an equitable servitude to be enforceable, the following elements must be met:

(1) a writing that satisfied the Statute of Frauds
(2) intent for the servitude to be enforced against subsequent land lowers
(3) the servitude must touch and concern the land, and
(4) a subsequent purchaser had notice of the servitude.

No privity required.

Question 26

Implied Reciprocal Servitudes

Answer 26

Fact Pattern With Planned Communities

Implied reciprocal servitudes are created when

(1) a land developer intends to subject all plots of a subdivision to a

(2) reciprocal and

(3) negative covenant.

Subsequent landowners must

(4) have had notice, and

(5) there must be a common scheme.

Implied reciprocal servitudes do not need to be in writing.

Question 27

Defenses to Enforcement - Unclean Hands

Answer 27

Unclean hands is an available defense if the plaintiff has engaged in unethical, illegal, or improper conduct connected to the lawsuit

Question 28

Defenses to Enforcement - Estoppel

Answer 28

Estoppel occurs when the plaintiff makes a representation that he will not assert a claim against the defendant, and the defendant reasonably relies on the representation.

Question 29

Defenses to Enforcement - Laches

Answer 29

Laches is an available defense if the plaintiff

(1) unreasonably delayed filing a cause of action, and

(2) the delay causes prejudice to the defendant