Land Use

Question 1

Easements

Answer 1

An easement holder has the right to use another’s tract of land for a special purpose, but has no right to possess or enjoy that land. An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.

Question 2

Affirmative Easements

Answer 2

Easement for which the holder is entitled to make affirmative use of the servient tenement.

Question 3

Negative Easements

Answer 3

Negative easements entitle the holder to compel the possessor of the servient tenement to refrain from engaging in an activity on the servient estate. Historically, negative easements were recognized only for light, air, lateral and subjacent support, and flow of an artificial stream. Today, negative easements are simply restrictive covenants.

Question 4

Easement Appurtenant

Answer 4

An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land. There must be two tracts: the dominant tenement (the estate benefited by the easement), and the servient tenement (the estate subject to the easement right). An easement appurtenant passes with the transfer of the benefited land, regardless of whether it is mentioned in the conveyance. The burden of the easement also passes automatically with the servient estate unless the new owner is a bona fide purchaser with no actual or constructive notice of the easement.

Question 5

Easement in Gross

Answer 5

The holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land; i.e. the easement benefits the holder rather than another parcel. An easement in gross for the holder’s personal pleasures is not transferable, but one that serves an economic or commercial interest is transferable

Question 6

Methods of Creating an Easement

Answer 6

<br></br>(i) Express Grant. Any easement must be in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside of the Statute of Frauds. <br></br>(ii) Express Reservation. An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose. <br></br>[applies only to the Grantor reserving powers for self]. <br></br>(iii) Implication. An easement by implication is created by operation of law; it is an exception to the Statute of Frauds. There are three types. <br></br>(iv) Prescription.

Question 7

Easement Implied from Existing Use (‘Quasi-Easement’)

Answer 7

An easement may be implied if: <br></br>(i) Prior to the division of a single tract; <br></br>(ii) An apparent and continuous use exists on the ‘servient’ part; <br></br>(iii) That is reasonably necessary for the enjoyment of the ‘dominant’ part; and <br></br>(iv) The court determines that the parties intended the use to continue after division of the land.

Question 8

Easement Implied without any Existing Use

Answer 8

In two limited situations, easements may be implied without preexisting use: <br></br>(i) Subdivision Plat. When lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots. <br></br>(ii) Profit a Prendre. The holder of the profit a prendre has an implied easement to pass over the surface of the land and to use it as reasonably necessary to extract the product.

Question 9

Easement by Necessity

Answer 9

An easement by necessity arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line. The owner of the servient parcel has the right to locate the easement.

Question 10

Prescription

Answer 10

Acquiring an easement by prescription is analogous to acquiring property by adverse possession. To acquire a prescriptive easement, the use must be: <br></br>(i) Open and notorious; <br></br>(ii) Adverse; and <br></br>(iii) Continuous and uninterrupted; <br></br>(iv) For the statutory period. Generally, prescriptive easements cannot be acquired in public land.

Question 11

Stated Conditions

Answer 11

The original easement grant may specify when or under what conditions the easement will terminate.

Question 12

Unity of Ownership (Merger)

Answer 12

If the same person acquires ownership of both the easement and the servient estate, the dominant and servient estates merge and the easement is destroyed. Even though there may be later separation, the easement will not be automatically revived. The unity must be complete (e.g., the holder of the easement must acquire an interest in the servient tenement of equal or greater duration than the duration of the easement privilege).

Question 13

Release

Answer 13

An easement <br></br>(including an easement in gross, which is otherwise inalienable) can be terminated by a deed of release from the owner of the easement to the owner of the servient tenement.

Question 14

Abandonment

Answer 14

An easement is extinguished when its holder demonstrates by physical action an intent to permanently abandon the easement. Merely expressing a wish to abandon does not extinguish the easement, neither does mere nonuse. However, oral expressions combined with a long period of nonuse may be sufficient.

Question 15

Estoppel

Answer 15

Oral expressions of an intent to abandon do not terminate an easement unless committed to writing or accompanied by action. But if the owner of the servient estate changes his position in reasonable reliance on the representations made or conduct by the owner of the easement, the easement terminates through estoppel.

Question 16

Prescription

Answer 16

To terminate an easement by prescription, there must be an adverse, continuous interruption of the use for the prescriptive period (typically 20 years).

Question 17

Necessity

Answer 17

Easements created by necessity expire as soon as the necessity ends.

Question 18

Condemnation and Destruction

Answer 18

Condemnation of the servient estate extinguishes all easements. Involuntary destruction of a structure in which there is an easement extinguishes the easement; voluntary destruction of such a structure does not.

Question 19

Licenses

Answer 19

Licenses privilege their holders to go upon the land of another. But unlike an easement, a license is not an interest in land, it is merely a privilege, revocable at the will of the licensor. A license is personal to the licensee, and thus is inalienable. Any attempt to transfer a license results in revocation by operation of law. <br></br>[A failed attempt to create an easement results in a license.]

Question 20

Irrevocable Licenses

Answer 20

A license becomes irrevocable in the following circumstances: (1) Estoppel. If a licensee invests substantial amounts of money or labor in reliance on the license, the licensor is estopped to revoke. The license becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures. (2) License Coupled with an Interest. A license coupled with an interest is irrevocable as long as the interest lasts.

Question 21

Profits

Answer 21

Profits entitle the holder of the benefit to take some resources (e.g. soil, timber, etc.) from the servient estate. Implied in every profit is an easement entitling the benefit holder to enter the servient estate to remove the resources. All of the rules governing creation, alienation, and termination of easements are applicable to profits. In addition, a profit may be extinguished through surcharge (misuse that overly burdens the servient estate).

Question 22

Real Covenants

Answer 22

A real covenant, normally found in a deed, is a written promise to do something on the land or a promise not to do something on the land. Real covenants run with the land at law, which means that subsequent owners may enforce or be burdened by the covenants.

Question 23

Requirements for Burden to Run

Answer 23

If the following requirements are met, any successor in interest to the burdened estate will be bound y the covenant as if she had herself expressly agreed to it:

(1) Intent
(2) Notice
(3) Horizontal Privity
(4) Vertical Privity
(5) Touch and Concern

Question 24

Intent

Answer 24

The covenanting parties must have intended that successors in interest to the covenantor be bound by the terms of the covenant. This intent may be inferred from circumstances surrounding the creation of the covenant, but is usually found in the language of the conveyance itself.

Question 25

Notice

Answer 25

Under modern recording acts, to be bound by a covenant, a subsequent purchaser for value must have had actual, inquiry, or record notice of the arrangement at the time of purchase. <br></br>[Because the notice requirement arises under the recording acts, remember that it will protect only purchasers for value. Someone who does not give value may be bound by a covenant at law (not equity) even if he has no actual or constructive notice of the covenant.

Question 26

Horizontal Privity

Answer 26

At the time the promisor entered into the covenant with the promise, the two must have shared some interest in the land independent of the covenant. <br></br>[Horizontal privity concerns only the original parties. Even if successors in interest are trying to enforce the covenant, you must look only to the original covenanting parties to determine horizontal privity].

Question 27

Vertical Privity

Answer 27

To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time he made the covenant.

Question 28

Touch and Concern

Answer 28

Negative covenants touch and concern the land if they restrict the holder of the servient estate in his use of that parcel of land. Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something, which increases his obligations in connection with his enjoyment of the land.

Question 29

Requirements for Benefit to Run

Answer 29

If the following three requirements are met, the promisee’s successor in interest may enforce the covenant: <br></br>(i) Intent; <br></br>(ii) Vertical Privity; and <br></br>(iii) Touch and Concern

Question 30

Intent

Answer 30

The covenanting parties must have intended that the successors in interest to the covenantee be able to enforce the covenant.

Question 31

Vertical Privity

Answer 31

The benefits of a covenant run to the assignees of the original estate or any lesser estate; i.e., any succeeding possessory estate may enforce the benefit. <br></br>[Horizontal privity is not required for the benefit to run. Thus, where horizontal privity is lacking, the promisee’s successor’s can enforce the covenant against the promisor, but not against the promisor’s successors.]

Question 32

Touch and Concern

Answer 32

The benefit of a covenant touches and concerns the land if the promised performance benefits the covanantee and her successors in their use and enjoyment of the benefited land.

Question 33

Equitable Servitudes

Answer 33

An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The usual remedy is an injunction. <br></br>[The crucial difference between real covenants and equitable servitudes is the remedy sought. If money damages are sought, you must use the real covenant analysis. If a party seeks an injunction, you must consider whether the requirements for enforcement as an equitable servitude have been met. A single promise can create both a real covenant and an equitable servitude].

Question 34

Creation of Equitable Servitudes

Answer 34

Generally, as with real covenants, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. There is one exception: Negative equitable servitudes may be implied from a common scheme for development of a residential subdivision. Thus, if a developer subdivides land, and some deeds contain a negative covenant while others do not, the negative covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.

Question 35

Common Scheme

Answer 35

Reciprocal negative servitudes will be implied only if, at the time that sales in the subdivision began, the developer had a plan that all parcels would be subject to the restriction. The scheme may be evidenced by: <br></br>(i) a recorded plat, <br></br>(ii) a general pattern of restrictions, or <br></br>(iii) oral representations to early buyers. <br></br>[If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold].

Question 36

Notice

Answer 36

To be bound by a covenant not in her deed, a grantee must have had notice of the covenants in the deeds of others in the subdivision. Notice may be actual (direct knowledge of covenants), inquiry (neighborhood appears to conform to common restrictions), or record (prior deed with covenant in grantee’s chain of title).

Question 37

Requirements for Burden to Run

Answer 37

A successor of the promisor is bound if: <br></br>(i) The covenanting parties intended that the servitude be enforceable by and against assignees; <br></br>(ii) The successor of the promisor has actual, inquiry, or record notice of the servitude; and <br></br>(iii) The covenant touches and concerns the land.

Question 38

Requirements for the Benefit to Run

Answer 38

The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee’s successors, if: <br></br>(i) the original parties so intended, and <br></br>(ii) the servitude touches and concerns the benefited property. <br></br>[In contrast to real covenants, which require vertical and horizontal privity of estate for burdens to run, and vertical privity for benefits to run, no privity of estate is required for an equitable servitude to be enforceable by and against assignees.]

Question 39

Equitable Defense to Enforcement

Answer 39

A court will not enforce an equitable servitude if: (a) The person seeking enforcement is violating a similar restriction on his own land (unclean hands); (b) A benefited party acquiesced in a violation of the servitude by one burdened party; (c) A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned (estoppel); (d) The benefited party fails to bring suit within a reasonable time (laches); or (e) The neighborhood has changed so significantly that enforcement would be inequitable.

Question 40

Party Walls and Common Driveways

Answer 40

Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extents it rests upon her land. Courts will imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it.

Question 41

Incidental Rights Generally

Answer 41

An owner of real property has the exclusive right to use and possess the surface, the airspace, and the soil of the property.

Question 42

Lateral Support

Answer 42

Ownership of land includes the right to have the land supported in its natural state by adjoining land.

Question 43

Support of Land in Natural State

Answer 43

A landowner is strictly liable if his excavation causes adjacent land to subside.

Question 44

Support of Land with Buildings

Answer 44

An adjacent landowner is strictly liable for damage to land and buildings caused by excavation only if it is shown that the land would have collapsed in its natural state. Otherwise, he is liable for such damage only if his excavation was done negligently.

Question 45

Subjacent Support

Answer 45

An underground occupant of land must support the surface and buildings existing on the date the subjacent estate was created. Liability for subsequently erected buildings requires negligence.

Question 46

Watercourses (Streams, Rivers, and Lakes)

Answer 46

There are two major systems for determining allocation of water in watercourses: the riparian doctrine and the prior appropriation doctrine. A boundary line also can be affected by accretion or avulsion.

Question 47

Riparian Doctrine

Answer 47

Under this doctrine, the water belongs to those who own the land bordering the watercourse. Riparian rights attach to all contiguous tracts held by the same owner as long as one abuts the water. Riparian owners can use water only in connection with the riparian parcel.

Question 48

Natural Flow Theory

Answer 48

Under this theory, a riparian owner’s use resulting in substantial or material diminution of the water’s quality, quantity, or velocity is enjoinable.

Question 49

Reasonable Use Theory

Answer 49

All riparians share the right of ‘reasonable use’ of the water. In determining reasonable use, courts balance the utility of the owner’s use against the gravity of harm. Six factors are helpful in making this determination: alteration of flow, purpose of use, pollution, extent of use, destination of water taken, and miscellaneous conduct that may give rise to litigation.

Question 50

Prior Appropriation Doctrine

Answer 50

Individuals acquire rights by actual use. Appropriative rights are determined by priority of beneficial use. If there is a decrease in flow, priority is accorded in terms of time of appropriation. An appropriative right can be lost by abandonment.

Question 51

Groundwater (Percolating Water)

Answer 51

Four doctrines determine rights in diffuse underground water recovered through wells. (1) Absolute Ownership Doctrine, (2) Reasonable Use Doctrine, (3) Correlative Rights Doctrine, and (4) Appropriative Rights Doctrine.

Question 52

Absolute Ownership Doctrine

Answer 52

The owner of overlying land can take all the water she wishes, for any purpose, including export.

Question 53

Reasonable Use Doctrine

Answer 53

Much akin to absolute ownership, but exporting is allowed only if it does not harm other owners who may have rights in the same aquifer.

Question 54

Correlative Rights Doctrine

Answer 54

Owners of overlying land own the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use.

Question 55

Appropriative Rights Doctrine

Answer 55

Priority of use (not ownership of overlying land) is determinative.

Question 56

Restatement Approach

Answer 56

A surface owner may pump groundwater unless it <br></br>(i) unreasonably harms neighboring landowners, <br></br>(ii) exceeds the pumper’s reasonable share, or <br></br>(iii) directly and substantially affects surface waters and unreasonably harms surface water users.

Question 57

Surface Waters

Answer 57

A landowner can use surface water within her boundaries for any purpose she desires. Questions on surface water usually concern liability for changing natural flow by dikes, drains, etc. Liability depends on which theory the state follows: (1) natural flow theory, (2) common enemy theory, and (3) reasonable use theory. <br></br>[Remember, these theories apply to redirecting surface water. A landowner can capture as much surface water as he wisehs.]

Question 58

Natural Flow Theory

Answer 58

Owners cannot alter natural drainage pattern.

Question 59

Common Enemy Theory

Answer 59

An owner can take any protective measures to get rid of the water. The rule has been modified by many courts to prohibit unnecessary damage to others’ lands.

Question 60

Reasonable Use Theory

Answer 60

There is a growing trend to apply this theory, which involves balancing the utility of the use against the gravity of the harm.

Question 61

Rights in Airspace

Answer 61

The right to airspace above a parcel is not exclusive, but the owner is entitled to freedom from excessive noise.

Question 62

Right to Exclude ‘ Remedies of Possessor

Answer 62

The possessor of real property has the right to exclude others. His remedies for invasions include actions for: (1) Trespass (land invaded by tangible physical object); (2) Private Nuisance (land invaded by intangibles such as odors or noise); (3) Continuing trespass (land repeatedly invaded by trespasser); and (4) Ejectment or unlawful detainer to remove a trespasser or tenant. This action can be joined with a demand for money damages.

Question 63

Cooperatives

Answer 63

In a cooperative, title to the land and buildings is held by a corporation that leases individual apartments to its shareholders. Because of their economic interdependence and because the individual owners are regarded as tenants, a direct restraint on the alienation of an individual interest is valid.

Question 64

Condominiums

Answer 64

In a condominium, each owner owns the interior of his individual unit plus an undivided interest in the exterior and common areas. Because condominium unit ownership is treated as fee ownership, the ordinary rules against restraints on alienation apply.

Question 65

Zoning

Answer 65

The state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals and welfare of its citizens. The zoning power is based on the state’s police power and is limited by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the ‘no taking without just compensation’ clause of the Fifth Amendment. Cities and counties can exercise zoning power only if so authorized by a state enabling act. <br></br>[Zoning ordinances are generally invalid if they have no reasonable relation to public welfare, are too restrictive, are discriminatory as to a particular parcel, are beyond the grant of authority, violate due process, or are racially disc.]

Question 66

Nonconforming Use

Answer 66

A use that exists at the time of passage of a zoning act that does not conform to the state cannot be eliminated at once. Amortization is the gradual elimination of such uses.

Question 67

Special Use Permit

Answer 67

A special use permit is one that must be obtained even though the zoning is proper for the intended use.

Question 68

Variance

Answer 68

A variance is a departure from the literal restrictions of a zoning ordinance granted by administrative action.

Question 69

Unconstitutional Takings and Exactions

Answer 69

A zoning ordinance may so reduce the value of real property that it constitutes a taking under the Fifth and Fourteenth Amendments. If the ordinance constitutes a taking, the local government must pay damages to the landowner equal to the value reduction. If the ordinance regulates activity that would be considered a nuisance under common law principles, it will not be a taking even if it leaves the land with no economic value.

Question 70

Denial of All Economic Value

Answer 70

A regulation that deprives the owner of all economic use of his land constitutes a taking (unless the use was prohibited by nuisance or property law when the owner acquired the property).

Question 71

Denial of Nearly All Economic Value

Answer 71

Balancing test. If a regulation leaves property with very little economic value, to determine if there was a taking the court will balance: <br></br>(i) the social goals of the regulation, <br></br>(ii) the diminution in value of the property, and <br></br>(iii) the owner’s reasonable expectations for use of the property.

Question 72

Unconstitutional Exactions

Answer 72

Local governments often demand, in exchange for zoning approval for a new project, that the landowner give up some land for public purpose, such as street widening. However, such demands are unconstitutional under the Fifth and Fourteenth Amendments unless the government proves: <br></br>(i) the government demands are rationally connected to an additional burden the project will place on public facilities or rights; and <br></br>(ii) the dedication is reasonable related in nature and extent to the impact of the proposed development.

Question 73

Remedy

Answer 73

If a regulation constitutes a taking, the government will be required either to compensate the owner for the property or to terminate the regulation and pay the owner damages for the temporary taking.