Non-Possessory Interests Flashcards
Types of Easements: Appurtenant v. In Gross
Easement Appurtenant:
- Benefits holder in physical use/enjoyment of another tract of land
- Must have 2 tracts of land (servient tenement (subject to easement) and dominant tenement (estate benefited by the easement)
- Passes with transfers of benefited land (even if not mentioned in conveyance)
- Burden passes automatically with servient estate as long as party has NOTICE (i.e., if new owner is BFP with no knowledge of easement, he won’t be bound) (*SAME RULE for all easements)
Easement In Gross:
- Holder acquires right to use servient tenement independent of his possession of another tract of land (benefits person not another parcel of land)
- Personal pleasure easement (e.g., right to swim in pond on Blackacre) is NOT transferable
- Easement for economic or commercial interest (e.g., right to put up billboards on Blackacre) is transferable
- TX = NO easements in gross can be transferred UNLESS the language of the easement says so… exception: conservation easement
Express Easements
- Easement = interest in land, thus MUST comply with SOF and formalities of a deed
- Express reservation for grantor: majority view is that easement can only be reserved for G, and attempt to reserve for anyone else is VOID
Implied Easements
Implied by Prior Use: may be implied if
- (1) commonly owned land is severed
- (2) during time of common ownership
- (3) there was a use by the common owner
- (4) owner’s use was apparent AND continuous
- (5) use is reasonably necessary for enjoyment of now dominant estate (i.e., easier, more convenient)
Implied by Necessity: for landlocked property
- (1) there was once common ownership of land that is now severed
- (2) at the time of the severance, the dominant estate became landlocked
- (3) there is a strict necessity for access to a public road or utility line
- servient parcel owner has right to locate the easement
Easement by Prescription: use must be:
- (1) Visible and notorious (so the L could discover the use; cannot be hidden or not discoverable)
- (2) adverse (without permission; ANY grant of permission by owner, even oral, destroys hostility element)
- (3) continuous and uninterrupted (seasonal use is OK if appropriate under the circumstances)
- (4) for the prescriptive period (MBE = 20 years; TX = 10 years)
Scope of Use of Easements
- Written easement: terms control
- No writing: use or necessity that established easement will define use, w/ 2 presumptions
(1) easement is perpetual
(2) use is of reasonable development of the dominant estate (evolutionary, not revolutionary change) - Use to benefit OTHER property (besides the dominant estate) is excessive use; remedy = enjoin use (NOT termination of easement)
Termination of Easements
6 possible ways to terminate:
(1) Unity of ownership (merger–when both dominant and servient estates come together in same owner; NO automatic revival)
(2) Valid release that complies with SOF and deed formalities
(3) Abandonment (intent to abandon + physical action indicating intent; mere non-use is NOT enough)
(4) Estoppel (representation of relinquishment by holder of dominant estate + change of position in reliance by the holder of servient estate)
(5) Termination by prescription (servient owner must stop use and keep it stopped for statutory period MBE = 20 years; TX = 10)
(6) End of necessity
License
- A limited privilege of use (a K right)
- NOT a property interest
- Revocable at the will of the licensor (but may have to pay K damages for wrongful revocation)
- Tickets are ALWAYS licenses
- Anytime an easement is attempted but fails due to SOF, there is a license
- Becomes IRREVOCABLE when license + $ spent on property furthering the license = just as good as an easement, can be enforced under principles of estoppel (lasts until holder receives sufficient benefit to reimburse him for expenditures)
TX = irrevocable license is called EASEMENT BY ESTOPPEL - License coupled with an interest is irrevocable as long as the interest lasts
Profits
- Gives right to go onto land and take a natural resource away (e.g., timber, coal, etc.)
- carries with it an implied easement to go on the land and get the resource
- May be extinguished through surcharge (misuse that overly burdens the servient estate)
Restrictive Covenants
- Give the right to restrict someone else’s use of their land
- It’s an interest in real property
- Must be in writing (NO enforcement of oral covenants)
2 categories
(1) Real Covenants (enforced at law for damages)
(2) Equitable servitudes (enforced in equity for injunction)
Real Covenants
- Run with the land at law
- Writing is ALWAYS required
- Remedy = damages
- Requirements for BURDEN to run:
INTENT
NOTICE
TOUCH AND CONCERN
HORIZONAL PRIVITY
VERTICAL PRIVITY - Requirements for BENEFIT to run:
INTENT
TOUCH AND CONCERN
VERTICAL PRIVITY
Equitable Servitudes
- Can be enforced in equity regardless of whether it runs with the land at law
- Writing is usually required but may arise by implication from common scheme of development of a residential subdivision
- Remedy = injunction
- Requirements for BURDEN to run:
INTENT
NOTICE
TOUCH AND CONCERN - Requirements for BENEFIT to run:
INTENT
TOUCH AND CONCERN - Subdivisions: reciprocal negative servitudes will be implied ONLY if, at time sales in subdivision began, the develop had a plan that all parcels would be subject to restriction (Evidenced by (i) recorded plat, (ii) general pattern of restrictions, or (iii) oral representations to early buyers
Equitable Defenses to Enforcement
Court will NOT enforce an equitable servitude if:
(1) unclean hands (person seeking enforcement is violating similar restriction on his own land)
(2) acquiescence (by benefited party)
(3) estoppel (benefited party acted so that reasonable person would believe covenant was abandoned/waived)
(4) laches (benefited party fails to bring suit within reasonable time)
(5) neighborhood has changed so significantly that enforcement would be inequitable
Termination of Real Covenants and Equitable Servitudes
- written release
- merger of benefited and burdened estates
- condemnation of the burdened property
- changed circumstances (for subdivision: ALL OR NOTHING)
Adverse Possession
6 Elements (HELUVA)
- Hostile
- Exclusive
- Lasting for statutory period (MBE = 20 years, TX has 5 different periods but “bare possession” statute for naked trespasser with no color of title = 10 years)
- Uninterrupted (continuous use an ordinary owner would make)
- Visible (“open and notorious”)
- Actual possession (2 exceptions: constructive AP if (i) amount possessed bears reasonable relation to the whole and (ii) property must one unitary whole, and leasing of land not owned)
What’s NOT required:
- true owner does not have to know trespasser is on land (visibility = could have been discovered)
- adverse possessor does not need to have a claim of right (BUT… TX = MUST “intend to appropriate the land as one’s own”)
Adverse Possession Details
Tacking: CAN tack periods of AP but must pass directly (no gaps); CAN tack periods of true owners (statutory period doesn’t have to run against a single owner)
Co-Ts: AP can only occur when possessor deliberately excludes the other co-Ts from possession and statute runs
Future interests: clock does not run against the future interest holder until the interest becomes possessory
Disability and Limitations Tolling: being (i) a minor, (ii) of unsound mind, (iii) being in jail = legal disabilities that toll statute until owner is free of disability as long as disability existed at beginning of AP
- TX = MAX tolling is 25 years (no matter what, adverse possessor succeeds after 25 years); and only counts (i) minor (ii) unsound mind and (iii) armed forces as disabilities
