Part Three: Relations Among Neighbors Flashcards
What is the doctrine of adverse possession?
adverse possession transforms trespassers into owners, it transfers title from the “true” owner to the adverse possessor when the AO possesses another’s land in a manner that is actual, exclusive, “open and notorious”, continuous, adverse under a claim of right and done beyond the SoL
What is the “actual” element in adverse possession?
“Actual occupancy means the ordinary use to which the land is capable and such as an owner would make of it”
being there physically
building, planting, maintaining on or for the property
What is a quiet title claim?
this kind of claim asks the court to grant a declaratory judgment that the adverse possessor has become the owner of the disputed property through adverse possession
What is the “color of title” ?
when an AP with a defective deed (due to an error in the deed or its issuance) can still claim ownership of the land under color of title
What is the “open and notorious” element for AP?
the AP’s acts are sufficiently visible and obvious to put the owner on notice that their property is being occupied by a non-owner. The true owner is “charged with seeing what reasonable inspection would disclose.” WHAT THEY SHOULD KNOW
building, clearing the land, laying down a driveway, mowing grass, planting and harvesting crops
What is the “exclusive” element in AP?
Exclusivity generally means that the use “is of a type that would be expected of a true owner of the land in question”
The AP acts as the owner “effectively excluding the record owner”
cannot be shared with record owner
“It must be exclusive, which means that the occupier does not share ownership with the titleholder but acts like a true owner and exercises the right to exclude others.”
What is the “continuous” element in AP?
The AP must exercise control over the property in ways customarily pursued by owners of that type of property
in general, in holding, managing, and caring for property of like nature and condition
“the occupier used the property as a true owner which would allow for occasional breaks away from the property.”
What is the doctrine of tacking?
The succeeding periods of possession by different persons may be added together so long as they were in privity and also satisfied the elements of AP
What is privity?
the original owner purported to transfer title to the property to the successor
What is the element of “adverse under a claim of right” for AP?
Tackled in Brown v. Gobble
courts agree that this element means that the use by the AP is nonpermissive
must distinguish the requirements for the state of mind of the true owner from the requirements for the state of mind of the adverse possessor.
courts have a presumption of another’s property is nonpermissive
What is nuisance law?
provides remedies for conduct that causes unreasonable harm to the use and enjoyment of land
It asks us to decide whether to protect the plantiff’s right to security from harm or the defendent’s interest in freedom of action.
What is a nuisance?
it is a substantial and unreasonable interference with the use or enjoyment of the land
What are the elements to determine substantial and unreasonable harm
- Utility of the defendant’s conduct
- Gravity of harm to the plaintiff
The standard in tort law is “eggshell plaintiff” regardless of unforeseeable pre-existing conditions, take the plaintiff as you find them
Nuisance law is different in that the reasonableness is against that of a typical person, an unreasonable sensitivity will bar a nuisance claim - Suitability to the area
- Priority of use
- Cost to the plaintiff and defendant of avoiding the harm
- Practicability of abating the nuisance
Is it feasible to enforce the solution or to stop the alleged behavior
GCUSPP
What is nusiance per se?
an activity that is so disfavored that they will be held to constitute nuisances no matter where they take place or what consequences they generate
What is the motivation for zoning?
it is a means of prospectively limiting the harms that might arise from the proximity of incompatible land uses.
What is a servitude?
A legal right that allows one party to use another party’s land for a specific purpose or restricts how the owner can use their land.
Servitudes are typically non-possessory interests in land, meaning they do not grant ownership but instead create obligations or rights between property owners.
what is an easement?
are nonpossessory rights to limited specifc use of another’s land
what is a lease?
they are posessory rights to use a defined space for all uses not explicilty or implicitly prohibited in the lease
what is a license?
limited rights to enter or use land that do not run wiht the land and are usually revocable at will by the grantor
no wiritng is required to create a license and many are implied by the circumstances
What does the statute of frauds state?
it requires easements to be in writing and sufficiently described in order to be enforceable
What are the three kinds of negative easements?
- The right to lateral support of one’s building
- Rights to prevent both light and air from being blocked by construction or neighboring land
- the right to prevent interference with the flow of an artificial stream
What are the elements for EXPRESS easements to run wiht the land?
- it is in writing
- for the burden to run, there was notice to the servient estate holder of the easement
- It was intended to run with that estate.
What is an appurtenant easement?
It is about the way the land offers benefits.
A and B are neighbors, A uses a strip of B’s land to access the river. Two property owners are directly related to this property
what is an en gross easement?
One property owner and a non-property owner
Personal to a person’s right and not running with the land
Not based on the land but the benefit held by a particular individual.
Example: A and B are neighbors and the state wants to use their property line as a path to the river. That benefit is helf by an individual who is not a property owner
What is easement by estoppel?
- when a landowner grants a license to use the property
- then the user substantially changed in detrimental reliance to this permission (substantial improvements)
- the reliance meant that it would be an injustice to revoke it
- intended, expected and necessary (in short)
what is easement by prescription?
they are created through “open and notorious” adverse use of the land continuosly until the expiration of the SoL passes.
AP without the need for exclusivity
easements implied by prior use?
- 2 parcels previously owned by grantor are subdivided
- 1 parcel previously used for the apparent benefit of the other in an apparent and continuous manner
(We would not call this an easement prior to the subdivision) - Use is “reasonably necessary” or “convenient” for enjoyment of dominant estate
easements by necessity?
Strict necessity not convenience
Affording access must have the intent of necessary use
Some jdx’s only require strict necessity (majority opinion)
* the dominant and servient estates were formerly one parcel
* at the time of severance the dominant estate became landlocked
What is a prescriptive easement and its elements?
an irrevocable right to use another person’s land for a specific purpose
affirmative: the right to engage in a particular use on another’s land
negative: the right to limit or block a particular use of another’s land and cannot be prescribed
Elements are the same as adverse possession except there is no exclusive requirement
Takeaway from Lobato v. Taylor?
An example that in pursuit of justice that something they deem a license has become irrevocable and turn it into something that lasts which is easement by estoppel
What case was an easement by necessity case?
Finns v. Williams
* If permission to use the land is denied, as in this case, future owners can still use the unused easement that was implied when the dominant and servient estates were originally divided.
What case was an easement by prior apparent use?
Granite properties v. Mann
* Use is “reasonably necessary” or “convenient” for enjoyment of dominant estate, ask if the parties likely believed it was part of their bargain
* An implied easement may arise from a grantor’s continuous and apparent preexisting use of property conveyed by the grantor, even if the easement is not absolutely necessary for the beneficial use and enjoyment of the property retained by the grantor.
* Majority view
* courts are more willing to give it to the grantee’s because of fairness principles because the grantee could not reasonably use the property they spent money for
What are the six ways to terminate an easement?
- agreement: in writing re-lease
- by their own terms: if the deed states that it only lasts for 10 years
- merger: when the holder of the servient estate becomes the owner of the dominant estate
- abandonment: if it can be shown that the owner of the easement, by her conduct, indicated an intent to abandon the easement
- adverse possesion / prescription: by the owner or the servient estate
- frustration of purpose: courts do this finding that the purpose of the easement is impossible to accomplish
What is a “marketable title act”?
it is an act which may require that easements be re-recorded to be binding on future purchasers.
What is a covenant?
allows one to compel another to:
* Refrain from doing something on her own land
B promises to refrain from doing something on their own property for the benefit of A’s property
* Do something on her own land (Affirmative covenant)
Not A can do something on B’s land, B promises TO DO something for A’s benefit
“Real Covenants” (enforceable via $ damages)
“Equitable Servitudes” (enforceable by injunction)
What are the elements of real covenants?
- in writing to comply with the statute of frauds
- intended to be binding on future tenants
- touched and concerned the land, it affected the use of the land itself (think appurtenant)
- if there was privity of estate (horizontal and vertical)
Such covenants are enforced by money damages
What are equitable servitudes and their elements?
- in writing to comply with the statute of frauds
- intended to be binding on future tenants
- touched and concerned the land, it affected the use of the land itself (think appurtenant)
- Actual, inquiry or constructive notice to owner of servient estate, the enforcer must be intended beneficiary of covenant (know or should have known)
such covenants are enforced by injunction
What is the Restatement Third approach to covenants?
- in writing to comply with the statute of frauds
- intended to run
- notice (know or should have known)
- enforceable unless “unreasonable”
the covenant cannot be arbitrary, spiteful, capricious, burdening a constitutional right, restrain alienation or restrain trade and does not otherwise violate public policy
What is actual, inquiry and constructive notice?
Actual: actually told
Inquiry: if the condition of the premises would make a reasonable purchaser inquire about the existence of a covenant
Constructive: If the restrictions was recorded within the registry of deeds and could be found via a reasonable search of the records prior to sale
NOTE: majority of courts hold that a reasonable record search includes all grants made by their neighbors
What is horizontal and vertical privity?
Horizontal: A to B
* The promise was made in the course of a land-transfer
* the promise is built-into the purchase price
Vertical: A to C, B to D
* a formal transfer of land
* classic privity
* strict vertical requires that the OG owner does not retain any future interests in the land (think leasing)
What does it mean for a covenant to “touch and concern” the land?
A covenant “touches and concerns” the land if it directly affects the use, value, or enjoyment of the property. This connection must be more than incidental—it must alter the character or benefit of the land.
What is the “touch” test?
Where the burdens and benefits created by the covenant may exist independently from the parties’ ownership interests in land, the covenant does not touch and concern the land and will not run with the land
Burden side: an obligation that affects the use and enjoyment of the land
Benefit side: an obligation that improves enjoyment of that land or increases its market value.
Why is there a refusal to enforce covenants when the benefit of the land is held in gross?
Such covenants restrict property owners freedom of use and marketability of the property.
However we think this is justified so long as there is sufficient compensating benefits to the other land.
What are the benefits of an injunction?
- parties get to bargain to determine who values the title most and set an appropriate price
- avoids and expense of litigation and the innaccuracy of damage awards set by a third party who is less knowledgeable about the situation
What are the benefits of damages?
Quantifiable Compensation: Provides a clear monetary value for losses.
Ease of Enforcement: Once awarded, damages can be collected without ongoing court supervision.
Flexibility: Allows the injured party to use the funds as needed.
Finality: Compensates for harm fully, ending the dispute without continued oversight.
What is an implied reciprocal negative servitudes?
A covenant that is implied by the previous owner sells a number of parcels with evidence of intent to create a common plan/scheme of development then
1. covenants made to the seller benefit all parcels within the plan
2. all parcels within the plan are bound by the covenants
What is a declaration of restrictions?
it describes the area covered by the common plan and recites the covenants applicable to the lots.
Buyers are on constructive notice if it’s recorded prior to their purchase and are deemed to impliedly agree to abide by the restrictions
the idea is that these grantee covenants are made for the benefit of ALL the lots in the plan.
Which case answers the question whether a covenant ran with the land to bind or benefit succeeding owners of the property?
Neponsit v. Bank
1. A covenant contained in a deed requiring the payment of money, ie. fees, “touches and concerns” the land if it substantially affects the rights of the parties as landowners.
2. Privity of estate will exist in substance if not in form between property owners and an owners’ association if the association is acting as a medium through which enjoyment of a common right is preserved.
Why does the Third Restatement of Property want to abolish the “touch + concern” requirement?
They find the requirement irrational and find the better parameter would be to make sure the servitude does not violate public policy:
* the servitude is capricious or spiteful
* burdens constitutional rights
* restraint on trade
* etc
What is a presumption for ambigious covenants?
Courts interpret them in the manner that would be the least burdensome to the free use of land.
In order to enhance land value
Which case answers whether an implied restrictive negative easement in a subdivision always apply to the entire subdivision?
Evans v. Pollock
* The general development plan in an implied restrictive negative easement in a subdivision can apply to the entire subdivision, but it does not have to.
* Different lots within a subdivision are not always situated the same way, so the restrictions on some lots in a subdivision are not always intended to and do not always have to apply to all lots.
What are some considerations of a common plan?
restrictions
plat showing restrictions
presence of restrictions in the last deed
Owners follow similar land development patterns and comply with written restrictions.
mutually enforceable covenants in the declaration
What evidence is sufficient to show no common plan exists?
if too many of the lots in the subdivision are sold without restrictions
or if the restrictions are not uniform
Are neighboring tracts treated as part of the common plan?
If it was noted in the original plat, the courts are likely to hold that it was part of the common plan.
What is the purpose of a community land trust and limited equity co-ops?
to remove land from the sepculative market, create housing for low income people, and keep that housing affordable.
Why do developers prefer common interest developments?
they can use less space by provising common recreational facilities rather than a yard for each home.
What are some policy reasons against common interest devlopments?
- Restrictive Rules & Loss of Autonomy– Homeowners associations (HOAs) often impose strict rules on property use, limiting individual freedoms
2.Overreach & Enforcement Issues – HOAs have significant power to enforce rules, sometimes leading to arbitrary or unfair penalties, liens, or even foreclosure for non-compliance. - Financial Burdens – Homeowners must pay HOA fees, which can increase unpredictably and become a financial strain, especially for those on fixed incomes.
- Exclusivity & Socioeconomic Segregation – CIDs can contribute to economic and social segregation by creating expensive barriers to entry and discouraging affordable housing.
- Democratic Deficit – HOA boards may be run by a few individuals with little accountability, leading to governance issues and conflicts of interest.
- Potential for Discriminatory Practices – Some HOAs have histories of using covenants and restrictions to exclude certain groups, raising concerns about fair housing.
- Stifling Innovation & Change – Strict architectural and land-use rules may prevent necessary adaptations, like adding accessory dwelling units (ADUs) or implementing sustainable building practices.
Which case was the minority view on implied reciprocal negative covenants?
Sanborn v. McLean
The McLeans should also have noticed that those related parcels conveyed with strict limitations on use. Moreover, the McLeans should have been able to observe that the lots surrounding theirs contained houses that conformed to a general consistent plan, which at a minimum put them on inquiry notice that the land was uniformly burdened with similar covenants.
