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T&D.Edits.Real Property > Land Use > Flashcards

Land Use Flashcards

1
Q

What legal rights entitle someone to make an affirmative use of land?

A
  1. Easements
  2. Profits
  3. Licences
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2
Q

What legal rights entitle someone to dictate how the land is to be used?

A
  1. Real covenants
  2. Equitable servitudes
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3
Q

What are the steps in an easement analysis?

A

Step 1: Was a valid easement created?

Step 2: Are there issues related to the scope of the easement?

Step 3: Are there arguments for termination of the easement?

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4
Q

What are the ways an easement is created?

A
  1. An express agreement upon the parties creating an easement: a writing sufficient to satisfy statute of frauds
  2. Prescription
  3. Conveyance/implied
  4. Necessity
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5
Q

How is an easement by prescription created?

A

When land is used continuously for the statutory period. It is analogous to the adverse possession of land.

More Info: Easement by Prescription

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6
Q

How is an easement by conveyance created?

A
  1. There was a common ownership of the dominant and servient estate and the ownership severed
  2. At the time of severance, the easement is already in use

And

  1. It is reasonably necessary that the easement exists
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7
Q

Differentiate between servientestates anddominant estates.

A

Servient estate: land is harmed by the easement

Dominant estate: land is served by the easement

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8
Q

How is an easement by necessity created?

A
  1. There was common ownership of the dominant and servient estate and there is severance of the ownership

And

  1. The easement is strictly necessary or absolutely necessary
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9
Q

How is an easement by public use created?

A

In the same way as an easement by prescription; however, the public is the party using the property for the statutory period.

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10
Q

What is an easement appurtenant?

A

An easement that benefits a parcel of land instead of a particular person.

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11
Q

What is an easement in gross?

A

An easement benefits a person or entity.

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12
Q

What is the scope of easements?

A

If the easement expressly states the scope, then it is confined to those terms. If the easement does not, then holder make make a reasonable use of the easement.

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13
Q

What is surcharging an easement?

A

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

Overuse is not grounds for termination; however, overuse can lead to a claim for damages or an injunction

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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 interferes with the servient owner’s use of his property.

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15
Q

When does an easement terminate?

A
  1. There is a destruction of the servient estate
  2. There is a termination from the easement holder
  3. There is a termination arising from the action of owner of the servient estate

Or

  1. The necessity creating the easement ends
    * More Info:* Termination of an Easement
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16
Q

When does destruction of the servient estate terminate an easement?

A

It will terminate the easement, unless the owner destroys the estate to prevent further use of the easement.

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17
Q

How can an easement holder terminate an easement?

A
  1. Merger: the same person at the same time acquires ownership of dominant and servient estate
  2. Holder provides a written release of rights to their easement
  3. Holder abandonment
  4. Estoppel
  5. Severance from dominant estate.
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18
Q

How can an easement be terminated by abandonment?

A
  1. The holder actually abandons use of the easement

And

  1. Holder uses words or conduct to indicate abandonment
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19
Q

How can an easement be terminated by estoppel?

A
  1. The easement holder leads the owner of the servient estate to believe they wish to terminate the easement

And

  1. The servient estate detrimentally relies on the holder’s assurances
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20
Q

How can an easement be terminated by severance?

A

In an easement appurtenant, any attempt to severe the estate from the dominant estate will severe the easement.

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21
Q

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

A
  1. By prescription

Or

  1. 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

By continuously interfering with the easement for the statutory period.

23
Q

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

A

The servient estate must sell the land to a bona fide purchaser that has no notice (actual, inquiry, constructive) of the easement.

24
Q

How can an easement be terminated by the ending of a necessity?

A

The easement is originally created by necessity and the necessity ends.

25
Q

What is a profit?

A

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

Examples: lumber, coal, soil.

26
Q

How can a profit be created?

A
  1. Expressly

or

  1. Prescription

≠ Implication

27
Q

What is a license?

A

The permission to use land.

28
Q

When is a license irrevocable?

A
  1. When the license is coupled with an interest

Or

  1. When there is an executed license and the holder expends money and labor in reliance on it, it is irrevocable until the holder has gotten value out of the expenditure.
29
Q

What is the revocability of licenses?

A

Licenses are freely revocable at any time and for any reason.

30
Q

When do covenants and equitable servitudes apply?

A

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

31
Q

What are the elements required for a covenant to run with the land to the new owner?

A
  1. The covenant touches and concerns the land
  2. The covenant is intended to run with the land
  3. The purchaser has notice of the covenant
  4. The purchaser is in privity of contract to the original covenant.
    * More Info:* Covenant to Run with the Land
32
Q

What are two ways to enforce land restrictions?

A
  1. Covenants

Or

  1. Equitable servitudes
33
Q

What is the remedy for the breach of a covenant?

A

Monetary damages

34
Q

What is the remedy for the breach of an equitable servitude?

A

Injunction

35
Q

When does a restriction touch and concern the servient estate?

A

When the restriction reduces the use and enjoyment of the servient estate. The restriction mandates the estate perform an action or restrict it from performing certain actions.

36
Q

When will a restriction touch and concern a dominant estate?

A

When it enhances or increases the use and enjoyment of the dominant estate.

37
Q

How is the intent element satisfied for a covenant to run with the land?

A

It must be intended that the restriction bind future landowners. A majority of states imply intent when the touch and concern element exists.

38
Q

Differentiate between a affirmative restriction and a negative restriction.

A

Affirmative: requires landowner to do something

Negative: forbids landowner to do something

39
Q

When is the notice element satisfied for a covenant to run with the land?

A

Servient side only: the owner of the servient estate must take with notice of the restriction (actual, constructive, inquiry)

40
Q

When is the privity element satisfied for a covenant to run with the land?

A

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

41
Q

What is horizontal privity?

A

Privity of contract in connection to the land:

  1. Grantor-grantee
  2. Mortgagor-mortgagee
  3. Landlord-tenant
    * More Info:* Horizontal Privity
42
Q

What is vertical privity?

A

Privity of estate: In order for the burden to run, privity of estate will only exist when a servient estate transfers all of ownership interest to transferee. Any transfer of an interest will satisfy dominant side.

More Info: Vertical Privity

43
Q

What are the three elements of an equitable servitude?

A

Elements are proved the same as covenants:

  1. Touch and concern
  2. Intent
  3. Notice

Equitable servitudes ≠ privity

44
Q

What are the ways to terminate a covenant or equitable servitude?

A
  1. Merger: the same person acquires both dominant and servient estate
  2. A written release from dominant estate
  3. Abandonment and conduct showing the intent to abandon
  4. Estoppel: if servient acts in detrimental reliance on dominant stipulating it will not continue to enforce the covenant/servitude
  5. Changed circumstances so that the reason behind the restriction is no longer valid.
45
Q

To be enforceable, covenants and equitable servitudes must satisfy?

A

The statute of frauds.

46
Q

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

A

Implied reciprocal servitudes

47
Q

What are the elements on an implied reciprocal servitude?

A
  1. The servitude is a negative restriction
  2. The 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)
48
Q

What is a nuisance?

A

An unreasonable interference with use and enjoyment of land.

More Info: Nuisance

49
Q

What are lateral support rights?

A

A landowner has the right to support from the sides of their land. A landowner has an absolute right to lateral support to their property. If an adjoining landowner deprives the landowner, they are strictly liable for any damage caused.

More Info: Lateral Support Rights

50
Q

What are a land owner’s lateral support rights if the land has been improved?

A
  1. If the improvement played a role in causing the subsidence, then the neighbor is only liable if negligent.
  2. If the land would have subsided with or without the improvement, then the neighbor is strictly liable
51
Q

What are subadjacent support rights?

A

Support from underneath. Landowners have an absolute right to support from underneath. Persons who deprive landowners of support are strictly liable for damages.

More Info: Subadjacent Support Rights

52
Q

What is the riparian view of water rights?

A

All landowners with access to a watershed have right to reasonable use of the water (majority position)

53
Q

What is the prior appropriation view of water rights?

A

The first person to make use of the water has the right to continue using it (minority view).

T&D.Edits.Real Property (5 decks)

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