LAND USE Flashcards
Easements
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.
Easement Appurtenant
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.
Easements in Gross
attaches to and benefits a specific owner, not land.
These easements do not transfer to subsequent landowners
Express Easement
An easement may be created expressly through either grant or reservation.
Express Grant of Easement
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
Express Reservation of an easement
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
Easement by Necessity
created if
- the original piece of land is subdivided and
- there is no access to the easement because the subdivision is landlocked
Does not need to satisfy the SOF
Easement by Implication
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
Easement by Prescription
(adverse possession)
may be acquired through continuous, actual, open, and notorious, and hostile use for the statutory period
Easement by Estoppel
Reasonable and detrimental reliance on a servient estate holder’s permission may create an easement by estoppel
Negative Easement
A negative easement restricts an easement holder’s use of the land and must be created through a writing signed by a grantor.
Easement Termination
Release
An easement holder may terminate his easement through a writing which satisfies the SOF and expressly releases his right.
Easement Termination
Merger
An easement is terminated by merger when either the dominate estate acquires title to the servient estate or vice versa
Easement Termination
Severance
When the holder of an easement appurtenant attempts to convey or transfer his right, this terminates his easement
Easement Termination
Abandonment
An easement holders terminates his easement when his affirmative acts demonstrate his intent to abandon his easement right.
Licenses
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.
Real Covenants
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
Real Covenants - Writing
A real covenant must be in writing and satisfy the Statue of Frauds
Real Covenants - Intent
The parties must explicitly or implicitly demonstrate intent for the covenant to run with the land.
Real Covenants - Touch and Concern
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
Real Covenants - Notice
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.
Real Covenants - Privity
Horizontal Privity
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.
Real Covenants - Privity
Vertical Privity
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
Real Covenant
Termination
A covenant may be terminated in one of the following ways:
(i) release
(ii) merger
(iii) abandonment
(iv) estoppel
Equitable Servitudes
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.
Implied Reciprocal Servitudes
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.
Defenses to Enforcement - Unclean Hands
Unclean hands is an available defense if the plaintiff has engaged in unethical, illegal, or improper conduct connected to the lawsuit
Defenses to Enforcement - Estoppel
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.
Defenses to Enforcement - Laches
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
