Land Use Flashcards
Situations where someone is claiming they can make affirmative use of the land
(3)
- easements
- profits
- licences
Situations where someone is claiming they can dictate how the land is to be used?
(2)
- real covenants
2. equitable servitudes
Checklist for easements:
3
- was a valid easement created
- are there any issues related to the scope
- are the arguments for termination
How is an easement created?
4
- express agreement upon the parties creating an easement (writing sufficient to satisfy statute of frauds)
- easement by prescritpion
- easement conveyance/implied
- easement by necessity
How is an easement by prescription created?
Adverse possession in the easement world. using the land continuously for the statutory period
- physical
- mental
- statute
How is an easement by conveyance created?
3
There is a conveyance and we will imply an easement if
- there was common ownership on the dominant and servient estate and there is severance
- at the time of severance the easement is already there (prior use)
- Reasonable necessary that easement exists
Servient estate v. dominant estate
servient estate = harmed by easement
dominant estate = served by the easement
How is an easement by necessity created?
2
- there was common ownership on the dominant and servient estate and there is severance
+ - strictly necessary or absolutely necessary
Easement by public use requirements
easement by prescription but
No one person is using the property continuously for the statutory period but the public is
What is easement appurtenant?
an easement that benefits a parcel of land
Will be dominant and servient estate
What is an easement in gross?
an easement benefits a person or entity
Just a servient estate
What is the scope of easements?
2
If express easement states what it is, then it is confined
If not, then can make reasonable use of easement
What is surcharging the easement?
Overusing the easement, going outside the scope of reasonable use of easement
Not grounds for termination: can be sued for damages or enjoined
What can a holder do to maintain an easement?
What is reasonably necessary to maintain the easement, even if it interfers with the servient owner’s use of his property
When does an easement terminate?
- destruction of the servient estate
- termination from the easement holder
- termination arising from the action of owner of the servient estate
- Necessity ends
When does destruction of the servient estate terminate an easement?
It will, unless the owner destroys it to prevent the easement
How can an easement holder terminate an easement?
5
- Merger: same person at the same time acquires ownership of dominant and servient estate (disappears, not auto recreated)
- Written release of rights to easement
- Abandonment
- Estoppel
- Severance
In order for an easement to terminate by abandonment?
2
- actual abandonment
+ - words or conduct to indicate abandonment
In order for an easement to terminate by estoppel?
Easement holder leads the owner of the servient to believe they wish to terminate
+
servient estate detrimentally relies
In order for an easement to terminate by severance?
Only works for easement appertunate
-any attempt to severe the estate from the dominate estate will severe (transfer)
How can an owner of the servient estate terminate an easement?
- Prescription
2. Sale of the servient estate to a bona fide purchaser
How can an owner of the servient estate terminate an easement by prescription?
continuously interfering with the easement for the statutory period
How can an owner of the servient estate terminate an easement by sale to a bona fide purchaser
If they sell to a BFP that has no notice (actual, inquiry, constructive) of the easement
Only way to terminate by end of necessity?
Easement created by necessity and necessity ends
A profit is:
Super easement
the right to go on someone’s land and remove something from it
A profit can only be created by
2
- expressly
- prescription
≠implication
How to analyze profits?
The same as easement except for creation
A license is
Permission to use land
Revocability of licences
Freely revocable for any time and any reason
when is a license irrevocable?
2
- when it is coupled with an interest
- when there is an executed license (easement by estoppel) receives permission then expends money and labor in reliance on it—irrevocable until they have gotten value out of the expenditure
When do covenants and equitable servitudes come into play?
Covenants and servitudes factor in when dominant and/or servient estates are sold.
For a covenant to run with the land (to the new owner), the following elements must be satisfied
(4)
- touch and concern
- intent
- notice
- privity
Restrictions on land are enforced through?
a covenant or an equitable servitude
Remedy for breach of a covenant?
dollar damages
Remedy for equitable servitudes?
injunction
A restriction will touch and concern the servient estate, when?
It reduces the use and enjoyment of the servient estate
-Can make estate do something or restrict it from doing something
A restriction will touch and concern the dominant estate, when?
It enhances or increases the use and enjoyment of the dominant estate
For a covenant to run with the land, intent element is satisfied
Must be intended that the restriction bind future land owners
**majority implies intent when touch and concern exists
Affirmative restriction v. negative restriction
Affirmative requires someone to do something
Negative forbids someone to do something
For a covenant to run with the land, notice element is satisfied
Servient Side only
The current owner of the servient estate must
take with notice of the restriction
Actual, constructive, inquiry
For a covenant to run with the land, privity element is satisfied
In order for a covenant to be enforceable against a subsequent owner of the land, there must be horizontal privity + vertical privity
Horizontal Privity is
3
Privity of contract; requires privity of contract in connection to the land
- grantor grantee
- mortgagor mortgagee
- landlord tenant
Vertical Privity is
Privity of estate
In order for the burden to run, privity estate will only exist when
Servient estate transfers all of ownership interest to transferee
Any transfer of an interest will satisfy dominant side
Which estate to follow for covenant restrictions?
Follow the estate that is being transfered
There are three elements of an equitable servitude:
- touch and concern
- intent
- notice
≠privity
Elements are proved the same as covenants
Ways to Terminate a Covenant or Equitable Servitude
5
- Merger: same person acquires both dominant and servient estate
- Written release form dominant estate
- Abandonment + Conduct of intent to abandon
- Estoppel: if servient acts in detrimental reliance on dominant saying it will not continue
- changed circumstances so that the reason behind the restriction is no longer valid
To be enforceable, covenants and equitable servitudes must
be in writing to satisfy statute of frauds
When can a restriction be created by implication/without a writing
Implied reciprocal servitude
Implied reciprocal servitude occurs when?
3
- Only a negative restriction
- restriction must be part of a common scheme or plan for the area
- the current owner of the servient estate must have taken with notice of the restriction (actual, constructive, inquiry)
A nuisance is:
unreasonable interference with use and enjoyment of land
Lateral support rights
support from the side of your land
-you have an absolute right to lateral support to your property
If adjoining land owner deprives you, they are strictly liable
Lateral support rights analysis if your land has been improved?
- did your improvement play a role in causing the subsidence
- neighbor is only liable if negligent - Would your land have subsided anyway?
- neighbor is strictly liable
Subjacent Support Rights are
subjacent support = support from underneath
You have an absolute right to support from underneath
Persons who deprive you are strictly liable for damages (including damages to improvements at the time the underground rights were granted)
If damage to improvements made after rights were granted, only liable if negligent
Riparian View of water rights
majority
All landowners with access to water shed have right to reasonable use of the water
Prior Appropriation View of water rights
minority
First person to make use of the water has the right to continue it
Under the UCC, the line between the sale of crops as goods and the sale of crops as real property depends on who is doing the severing.
If the seller sells the crops still attached to the land: sale of real property ≠ UCC
If the seller severs before delivered to the buyer: sale of goods = UCC
