Nonpossessory Interests Flashcards
Easements
Non-possessory property interest that allows limtied use of enjoyment of parcel
affirmative easement
Right to use someone else’s land
lay utility line
right of way
Negative easetment
right to prevent something on another’s land
- light
- air
- support
- stream water from an artificila flow
- minority of states - light
- minority of states - scenic view
can only be created expressly
easement appurtenant
involves 2 tracts
dominant - has benefit which runs to grantees
servient - has burden which runs to grantees with notice
purchaser of dominant auto gets it
purchser of servient only gets it fi had notice
easement in gross
involves one tract of land commercial or pecuniary gain
purely personal or commercial gain (e.g. billboad or right to swim in someone’ pond)
commercial passes personal easement doesnt
creation of easements
prescription
implication
necessity
grant
express grant of easement
SOF applies - giving an easement to another
easement implied by existing use
previouse use must be readily apparent and parties must have expected it to hae survive
easement by necessity
e.g. landlocked parcel and no way out without access to another’s property
easement by prescription
acquired through adverse, open and notorious and continuous use fo rteh statutory period
termination of easements
- stated condition
- unity of ownership
- abandonment
- estoppel (servient owner changes position in reliance on dominant)
- prescription (think of putting up chain fecne)
necessity (as soon as need expires it expires
license
just some entry for a delineated purpose (think of a ticket)
freely revocable
easements must be in writing
profits
right to enter someone’s land to remove products of soil
covenants
run with the land but not a grant of property interest
promises about the land
money damages only
requirements for benefits and burdens to run with the land
Requirements for burden to run to later grantees (bind to later successors): must be writing, intent covenant to run, notice (must have notice of the promise pertaining to the promise once they took), horizontal privity nexus between A and B the original promising parties (succession of estate must be shared, they were grantor grantee relationship, landlord tenant or debtor creditor. Difficult to establish. Likely absent. When will you have it (A purchased burdened parcel from B, or promised wouldn’t build commercially)), vertical privity (connection between originally burdened property and successor. Just find some nonhostile nexus like contract, will. Only absent if acquired through advere possession), touch and concern affect their rights as land owners
f. Requirements for benefit to run:must be in writing, intent for promise to run, vertical privity (non hostile nexus between beneficiaires), touch and concern NO HORIZONTAL PRIVITY… If someone makes a promise not to do something, the first person transfers, and then the second person violates the promise I think that you can take back your word.
implied from a common scheme
If you’re in a sub division you’re enjoined even if your property doesn’t contain the covenant
Requirements for burden to run
intent
notice
touch and concern
requiremtn for benefit to run
intent
touch and concern
statute of fraud
applies to over 1 year
can get around if you have partial performance through possession, improvement or payment (think 2/3)
must have consideration
deed must describe land
implied promise in land sale
they are providing marketable title (free of lawsuit or doubt)
delivery reqiurement of land sale
physically or manually transfer deed. this is a test of present intent to deliver the deed and physical delivery not required
rejection defeats delivery
if there is an oral condition, that oral condition drops out because of SOF
Deed
evidence intent to transfer land and adequately describe land
effective only on delivery and acceptnace (often presumed)
general warranty deed
1) General warranty deed—covenants against any title defects created by the grantor or prior titleholders. best deed - warrants against all defects in title including grantor’s predecessor. six promises
• present covenant - breached at time of delivery
• statue of limitations runs at deliver
• covenant of season - promises owns acre
• right to convey - power to transfer (no disability no restraints of alienation, et)
• covenant against encumbrances - there are no servitudes or liens on the land
• future covenant - future date when grantee is disbuted in possession
• statue of limitation - when disturbed in possession
• quiet enjoyment - no one will com ein and claim they own
• covenant of warranty - will defend if there’s someone claiming lawful superior title
• further assurances - to do whatever is needed ot help perfect the title
special warranty deed
covenants against title defects created by the grantor. same covenant in general warranty deed but make those promises only on behalf of grantor, not predecessors
quitclaim deed
no covenants; transfers whatever interest grantor has doesn’t contain any covenants. Grantor isn’t even promising it has good title
