MBE Property Flashcards
What is an easement?
Right held by one person to make use of another person’s land
affirmative easement
gives the holder the right to do something on someone else’s property
negative easement
gives the holder the right to prevent someone from doing something on her land
easement appurtenant
easement that benefits one parcel of land (dominant estate) to the detriment of another parcel of land (servient estate)
easement in gross
attaches the right to an individual rather than to the property itself. irrevocable unless individual dies or sells the land.
express easement
1) subject to SOF (must be in writing)
2) can be created by grant or reservation
3) subject to recording statutes
4) a negative easement must be express
easement by reservation
express easement created when a grantor conveys land but reserves an easement right in the land for the grantor’s use and benefit
implied easement
not formal; not subject to SOF; not subject to recording statutes UNLESS the subsequent purchaser had notice of the easement
4 kinds of implied easements
1) easement by necessity
2) easement by implication
3) easement by prescription
4) easement by estoppel
implied easement by necessity
created only when property is virtually useless (e.g., when property is landlocked and the owner needs an easement to access a road)
requires:
1) common ownership AND
2) necessity at severance
implied easement by implication
created by an existing use on the property
requires:
1) common ownership
2) quasi-easement
3) use must be continuous and apparent at the time of severance
4) use must be reasonably necessary to the dominant estate’s use and enjoyment
implied easement by prescription
similar to acquiring easement by adverse possession but easement concerns use not possession
requires:
1) continuous use for a statutory period,
2) open and notorious, AND
3) hostile
implied easement by estoppel
if reliance by A for A’s use of B’s land was detrimental to A, then B is estopped from withdrawing permission
license
a revocable permission to use another’s land
profit
the right to enter another’s land and remove a specific natural resource (not an easement)
duty to maintain an easement
owner of the dominant estate; parties can agree otherwise
termination of an easement (7)
1) release
2) merger
3) abandonment (non-use plus an act)
4) prescription
5) sale to a bona fide purchaser w/o notice
6) estoppel
7) end of necessity
termination of an easement by prescription
when holder fails to protect against a trespasser for the statutory period
What is a real covenant?
A promise concerning the use of the land that runs to successors to the promise.
benefit of the covenant
the ability to enforce the covenant
burden of the covenant
being subject to the covenant / bound by it
requirements for covenants to run with the land (5)
1) in writing
2) intent of original parties for covenant to run with the land
3) touch & concern
4) notice (actual, constructive or inquiry)
5) privity (burden - horizontal & strict vertical; benefit - relaxed vertical)
privity requirements to run burden to successor
1) horizontal privity: original parties to the promise must have been in horizontal privity (look for a transfer of property); AND
2) strict vertical privity: successor must take the original parti’s entire interest
privity requirements to run benefit to successor
1) relaxed vertical privity: successor need only take an interest that is carved out of the original party’s estate
remedy for breach of a real covenant
damages
two ways to bind a successor to an original party’s promise
1) real covenant
2) equitable servitude
touch & concern requirement for covenants to run
benefit or burden of the covenant must affect BOTH the promisee and hte promisor as owners of the land
negative covenants
a restriction on use
note: almost always touches & concerns because they restrict what you can do with your land; watch out for covenants not to compete or discriminatory covenants as these are unenforceable and do not touch & concern
affirmative covenant
covenant to pay money (e.g., homeowners association fees)
traditional: such fees do not touch & concern
modern: these fees do touch & concern
