MBE Property

Question 1

What is an easement?

Answer 1

Right held by one person to make use of another person’s land

Question 2

affirmative easement

Answer 2

gives the holder the right to do something on someone else’s property

Question 3

negative easement

Answer 3

gives the holder the right to prevent someone from doing something on her land

Question 4

easement appurtenant

Answer 4

easement that benefits one parcel of land (dominant estate) to the detriment of another parcel of land (servient estate)

Question 5

easement in gross

Answer 5

attaches the right to an individual rather than to the property itself. irrevocable unless individual dies or sells the land.

Question 6

express easement

Answer 6

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

Question 7

easement by reservation

Answer 7

express easement created when a grantor conveys land but reserves an easement right in the land for the grantor’s use and benefit

Question 8

implied easement

Answer 8

not formal; not subject to SOF; not subject to recording statutes UNLESS the subsequent purchaser had notice of the easement

Question 9

4 kinds of implied easements

Answer 9

1) easement by necessity
2) easement by implication
3) easement by prescription
4) easement by estoppel

Question 10

implied easement by necessity

Answer 10

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

Question 11

implied easement by implication

Answer 11

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

Question 12

implied easement by prescription

Answer 12

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

Question 13

implied easement by estoppel

Answer 13

if reliance by A for A’s use of B’s land was detrimental to A, then B is estopped from withdrawing permission

Question 14

license

Answer 14

a revocable permission to use another’s land

Question 15

profit

Answer 15

the right to enter another’s land and remove a specific natural resource (not an easement)

Question 16

duty to maintain an easement

Answer 16

owner of the dominant estate; parties can agree otherwise

Question 17

termination of an easement (7)

Answer 17

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

Question 18

termination of an easement by prescription

Answer 18

when holder fails to protect against a trespasser for the statutory period

Question 19

What is a real covenant?

Answer 19

A promise concerning the use of the land that runs to successors to the promise.

Question 20

benefit of the covenant

Answer 20

the ability to enforce the covenant

Question 21

burden of the covenant

Answer 21

being subject to the covenant / bound by it

Question 22

requirements for covenants to run with the land (5)

Answer 22

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)

Question 23

privity requirements to run burden to successor

Answer 23

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

Question 24

privity requirements to run benefit to successor

Answer 24

1) relaxed vertical privity: successor need only take an interest that is carved out of the original party’s estate

Question 25

remedy for breach of a real covenant

Answer 25

damages

Question 26

two ways to bind a successor to an original party’s promise

Answer 26

1) real covenant

2) equitable servitude

Question 27

touch & concern requirement for covenants to run

Answer 27

benefit or burden of the covenant must affect BOTH the promisee and hte promisor as owners of the land

Question 28

negative covenants

Answer 28

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

Question 29

affirmative covenant

Answer 29

covenant to pay money (e.g., homeowners association fees)

traditional: such fees do not touch & concern
modern: these fees do touch & concern