Nonpossessory Interests Flashcards
Easement
Ways to create
Easement: nonpossessory property interest that grants holder some use or enjoyment of land (NO right to possess land)
* Easements can be created expressly in writing that satisfies SOF
* Easement presumed to last perpetually unless grant specifically limits it
Creation: PING
* Prescriptive easement
* Implied easement
* Necessity
* Grant (express)
SUBJECT TO SOF
SUBJECT TO RECORDING STATUTES
Easement Appurtenant v. Easement in Gross
Easement Appurtenant: Right to use someone else’s land (servient parcel) for benefit of easement holder’s land (dominant parcel)
Easement in Gross: Right to use someone else’s land (servient parcel) for special purpose, independent of easement holder’s own land
Easement by reservation: landowner conveys land but reserves right to use land for special purpose after (passes title and reserves easement interest)
Termination of Easement
END CRAMP
Estoppel:
Necessity
Destruction
Condemnation
Release (written)
Abandonment
Merger: merge ownership of dominant and servient parcels
Prescriptive:
Real Covenant
Written promise to do or not do something on the land
* Real covenants run with the land
* Subsequent owners may enforce or be burdened by the covenant
Real Covenant - Burden
If burden runs with the land, it’ll bind successor in interest (WITHN):
(1) Covenant was in writing
(2) Original parties intended covenant bind successors
* Inferred from circumstances during creation of covenant or language from coveyance (“grantees, their heirs, successors, and assigns”)
(3) Covenant “touches and concerns” the land
* Affects legal status as landowners
(4) Horizontal privity between original parties and vertical privity between original party and successors
* Horizontal privity: parties shared interest in land independent of covenant (ex. satisfied by grantor-grantee relationship)
* Vertical privity: there was nexus between successor and original party (contract, devise, or descent) that’s NOT adverse possession
(5) Successor had notice under applicable recording statute
* Actual, constructive, or inquiry notice
* Properly recorded deed with covenant prevents anyone from being BFP
Touch and Concern
* Restrictive covenants touch and concern the land if they restrict the burdened parcel owner in her use of that parcel of land.
* Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something that increases her obligations in connection with the land.
* NOTE: Covenants to pay money to be used in connection with the land (such as homeowners’ association fees) and covenants not to compete DO touch and concern the land.
Equitable Servitude
Whether or not covenant runs with the land, equity will enforce covenant against owners of burdened land with notice
* Remedy: injunction against violation of covenant
Benefit runs:
* Intent
* Touch and Concern
Burden runs:
* Intent
* Touch and Concern
* Notice
Burden: For the burden to run, the covenanting parties must have intended that the servitude be enforceable by and against assignees; the assignee must have notice of the covenant; and the covenant must touch and concern the property.
Benefit: Burden: For the burden to run, the covenanting parties must have intended that the servitude be enforceable by and against assignees and the covenant must touch and concern the property.
Reciprocal Negative Servitude: Common Scheme Doctrine
A court will enjoin an unrestricted lot holder from violating a (missing) covenant in a subdivision deed if:
(a) there is a common scheme of development, and
* Developer divides land, adds restrictive covenants to all deeds, and sells them as part of a general scheme of residential development, which includes D’s lot
(b) lot holder had notice of the restriction,
Note: ANY neighbor in subdivision can enforce covenant
Reciprocal negative servitude = implied equitable servitude
