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Real Property > Land Use > Flashcards

Land Use Flashcards

1
Q

Situations where someone is claiming they can make affirmative use of the land
(3)

A
  1. easements
  2. profits
  3. licences
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2
Q

Situations where someone is claiming they can dictate how the land is to be used?
(2)

A
  1. real covenants

2. equitable servitudes

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3
Q

Checklist for easements:

3

A
  1. was a valid easement created
  2. are there any issues related to the scope
  3. are the arguments for termination
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4
Q

How is an easement created?

4

A
  1. express agreement upon the parties creating an easement (writing sufficient to satisfy statute of frauds)
  2. easement by prescritpion
  3. easement conveyance/implied
  4. easement by necessity
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5
Q

How is an easement by prescription created?

A

Adverse possession in the easement world. using the land continuously for the statutory period

  1. physical
  2. mental
  3. statute
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6
Q

How is an easement by conveyance created?

3

A

There is a conveyance and we will imply an easement if

  1. there was common ownership on the dominant and servient estate and there is severance
  2. at the time of severance the easement is already there (prior use)
  3. Reasonable necessary that easement exists
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7
Q

Servient estate v. dominant estate

A

servient estate = harmed by easement

dominant estate = served by the easement

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8
Q

How is an easement by necessity created?

2

A
  1. there was common ownership on the dominant and servient estate and there is severance
    +
  2. strictly necessary or absolutely necessary
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9
Q

Easement by public use requirements

A

easement by prescription but

No one person is using the property continuously for the statutory period but the public is

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10
Q

What is easement appurtenant?

A

an easement that benefits a parcel of land

Will be dominant and servient estate

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11
Q

What is an easement in gross?

A

an easement benefits a person or entity

Just a servient estate

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12
Q

What is the scope of easements?

2

A

If express easement states what it is, then it is confined

If not, then can make reasonable use of easement

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13
Q

What is surcharging the easement?

A

Overusing the easement, going outside the scope of reasonable use of easement

Not grounds for termination: can be sued for damages or enjoined

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14
Q

What can a holder do to maintain an easement?

A

What is reasonably necessary to maintain the easement, even if it interfers with the servient owner’s use of his property

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15
Q

When does an easement terminate?

A
  1. destruction of the servient estate
  2. termination from the easement holder
  3. termination arising from the action of owner of the servient estate
  4. Necessity ends
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16
Q

When does destruction of the servient estate terminate an easement?

A

It will, unless the owner destroys it to prevent the easement

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17
Q

How can an easement holder terminate an easement?

5

A
  1. Merger: same person at the same time acquires ownership of dominant and servient estate (disappears, not auto recreated)
  2. Written release of rights to easement
  3. Abandonment
  4. Estoppel
  5. Severance
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18
Q

In order for an easement to terminate by abandonment?

2

A
  1. actual abandonment
    +
  2. words or conduct to indicate abandonment
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19
Q

In order for an easement to terminate by estoppel?

A

Easement holder leads the owner of the servient to believe they wish to terminate
+
servient estate detrimentally relies

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20
Q

In order for an easement to terminate by severance?

A

Only works for easement appertunate

-any attempt to severe the estate from the dominate estate will severe (transfer)

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21
Q

How can an owner of the servient estate terminate an easement?

A
  1. Prescription

2. Sale of the servient estate to a bona fide purchaser

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22
Q

How can an owner of the servient estate terminate an easement by prescription?

A

continuously interfering with the easement for the statutory period

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23
Q

How can an owner of the servient estate terminate an easement by sale to a bona fide purchaser

A

If they sell to a BFP that has no notice (actual, inquiry, constructive) of the easement

24
Q

Only way to terminate by end of necessity?

A

Easement created by necessity and necessity ends

25
Q

A profit is:

A

Super easement

the right to go on someone’s land and remove something from it

26
Q

A profit can only be created by

2

A
  1. expressly
  2. prescription

≠implication

27
Q

How to analyze profits?

A

The same as easement except for creation

28
Q

A license is

A

Permission to use land

29
Q

Revocability of licences

A

Freely revocable for any time and any reason

30
Q

when is a license irrevocable?

2

A
  1. when it is coupled with an interest
  2. 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
31
Q

When do covenants and equitable servitudes come into play?

A

Covenants and servitudes factor in when dominant and/or servient estates are sold.

32
Q

For a covenant to run with the land (to the new owner), the following elements must be satisfied
(4)

A
  1. touch and concern
  2. intent
  3. notice
  4. privity
33
Q

Restrictions on land are enforced through?

A

a covenant or an equitable servitude

34
Q

Remedy for breach of a covenant?

A

dollar damages

35
Q

Remedy for equitable servitudes?

A

injunction

36
Q

A restriction will touch and concern the servient estate, when?

A

It reduces the use and enjoyment of the servient estate

-Can make estate do something or restrict it from doing something

37
Q

A restriction will touch and concern the dominant estate, when?

A

It enhances or increases the use and enjoyment of the dominant estate

38
Q

For a covenant to run with the land, intent element is satisfied

A

Must be intended that the restriction bind future land owners

**majority implies intent when touch and concern exists

39
Q

Affirmative restriction v. negative restriction

A

Affirmative requires someone to do something

Negative forbids someone to do something

40
Q

For a covenant to run with the land, notice element is satisfied

A

Servient Side only

The current owner of the servient estate must
take with notice of the restriction

Actual, constructive, inquiry

41
Q

For a covenant to run with the land, privity element is satisfied

A

In order for a covenant to be enforceable against a subsequent owner of the land, there must be horizontal privity + vertical privity

42
Q

Horizontal Privity is

3

A

Privity of contract; requires privity of contract in connection to the land

  1. grantor grantee
  2. mortgagor mortgagee
  3. landlord tenant
43
Q

Vertical Privity is

A

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

44
Q

Which estate to follow for covenant restrictions?

A

Follow the estate that is being transfered

45
Q

There are three elements of an equitable servitude:

A
  1. touch and concern
  2. intent
  3. notice

≠privity
Elements are proved the same as covenants

46
Q

Ways to Terminate a Covenant or Equitable Servitude

5

A
  1. Merger: same person acquires both dominant and servient estate
  2. Written release form dominant estate
  3. Abandonment + Conduct of intent to abandon
  4. Estoppel: if servient acts in detrimental reliance on dominant saying it will not continue
  5. changed circumstances so that the reason behind the restriction is no longer valid
47
Q

To be enforceable, covenants and equitable servitudes must

A

be in writing to satisfy statute of frauds

48
Q

When can a restriction be created by implication/without a writing

A

Implied reciprocal servitude

49
Q

Implied reciprocal servitude occurs when?

3

A
  1. Only a negative restriction
  2. restriction must be part of a common scheme or plan for the area
  3. the current owner of the servient estate must have taken with notice of the restriction (actual, constructive, inquiry)
50
Q

A nuisance is:

A

unreasonable interference with use and enjoyment of land

51
Q

Lateral support rights

A

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

52
Q

Lateral support rights analysis if your land has been improved?

A
  1. did your improvement play a role in causing the subsidence
    - neighbor is only liable if negligent
  2. Would your land have subsided anyway?
    - neighbor is strictly liable
53
Q

Subjacent Support Rights are

A

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

54
Q

Riparian View of water rights

A

majority

All landowners with access to water shed have right to reasonable use of the water

55
Q

Prior Appropriation View of water rights

A

minority

First person to make use of the water has the right to continue it

56
Q

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.

A

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

Real Property (4 decks)

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