Private Governance of Land

Question 1

Easement v. Profit

Answer 1

Easement = The property right to enter and make use of another’s real property.

Profit = The right to TAKE something off someone’s land.

Question 2

Granting v. reserving an easement

Answer 2

Burdened owner GRANTS an easement to the benefit holder.

Holder of the benefit RESERVES an easement for himself.

Question 3

Appurtenant Easement v. Easement in Gross (+examples)

Answer 3

Appurtenant Easements
- The land holds the easement.
- Two to tango – There is a burdened (servient estate) and a benefitted parcel (dominate estate).
- - Both the benefit and the burden runs with the land.
- This is the favored construction of easements
- Example = access easement, shared driveway

Easements in Gross
- Benefit is held by a person!
- Only one parcel: the burdened parcel (servient estate)
- Only the burden transfers (since the benefit is not held by the land).
- Normal rule = benefit holder cannot transfer benefit.
- - Exception = if benefit is held commercially.
- Examples = utilities, railroads, billboards, public right of way, etc.

Question 4

Affirmative v. negative easements

Answer 4

Affirmative = gives easement holder the right to do something

Negative = easement prevents holder from doing something with a certain piece of property
- MUST be created expressly (can NEVER imply negative easement)

Question 5

Common law & Modern rules of negative easements

Answer 5

CL = May only be appurtenant (unless statute says otherwise)
- Only for light, air, and flow of water in a man-made channel.

Modern= Usually use covenants instead.
- Conservation easements are kind of like negative easements in gross.

Question 6

When do express easements run with the land?

Answer 6

WIN
Writing (if not, SOF issues)
Intent (if not, license)
Notice (if not, BFP)

Question 7

Express easement creation

Answer 7

1. Draft a written deed of easement (or include reservation for grantor in a conveyance deed) – meet deed requirements LINK
2. Define the scope.
   - WHO holds the easement
   - WHERE is there easement
   - HOW easement is to be used
   - - Use, restrictions, maintenance, liability, relocation, expiration, succession.
3. Execute, notarize, & deliver deed.
4. Record deed.

Question 8

What sort of legal description is required for an effective grant of an easement?

Answer 8

Not as strict as a deed description, so long as the easement can be located on a specific servient estate.

Can even have floating easements (Sufficiently describe the underlying servient estate, but fail to identify precisely where on that estate the easement is located).

Question 9

Implied easement by estoppel

Answer 9

Elements:
(1) conduct foreseeably inviting reliance
- Can even include a moral obligation to keep people from relying (can’t passively let something happen and then after its complete let them know).
(2) and the reliance was reasonable, significant, and detrimental.

Essentially a license that morphs into an easement based on estoppel, because of equity. Doesn’t’ require payment – just becomes an easement.
Make sure person has clean hands.
Usually really large injustice if equity doesn’t step in.

Problems:
- No writing (backdoor to get around SOF)
- Can create confusion about scope. Where is this easement? No writing. Just basing it off of behaviors alone.
- Blurred line between license and easement and those are not the same.

Question 10

Implied easement by prior (existing) use

Answer 10

Elements:
(1) Prior unity of ownership between the two estates (common grantor)
- No common grantor, you don’t have this kind of easement
(2) Unity of ownership was severed AFTER the use had started
(3) Apparent and continuous use indicating intent for use to continue
(4) Easement is reasonably necessary for use and enjoyment of dominant estate.

Common scenario: Grantor conveyed part of land and SHOULD have reserved an easement, but forgot (think access). It’s necessary to use that access to get to grantors lot.

Question 11

Implied easement by strict necessity

Answer 11

Elements
(1) Prior unity of ownership between the two estate (common grantor)
Cannot get an implied easement over someone who was not in common ownership.
(2) Unity of ownership severed BEFORE the use had started
(3) Easement is strictly necessary for the use and enjoyment of the dominant estate.

Common scenario: property transferred is now landlocked, and there wasn’t already a road to it.

Question 12

Difference between implied easement by prior use and by strict necessity:

Answer 12

Was there already use going on at time of severance?
- Yes = cool, use prior use (only have to show reasonable necessity**).
- No = now have to show strict necessity.

Reasonably v. strictly necessary
Strictly necessary = no other way to do it. Can’t have a road on the other side that you COULD use, just less convenient (Boyd v. BellSouth)

Question 13

Use outside the scope of the easement

Answer 13

Use outside the scope = misuse.
- The definition of scope is much more flexible in implied bc it’s not written down.

Cannot change the who, where, or how (these are per se misuse)
- “who” is parcel or person depending on type of easement.

but you can reasonably increase the how much
- Look at the amount of change, the intent of the easement, and whether it is unduly burdensome on the servient parcel.
- Was the change reasonably foreseeable?

Question 14

How do you know the scope of an implied easement?

Answer 14

Prior use = look at the use
Necessary = What is necessary? (quite elastic)
- Any way that is reasonably necessary to value and use this property is a necessary use - Palmer v. Yancey Lumber
- But shouldn’t unduly burden the servient holder
- Palmer Majority: Balance the utility of the proposed change against the burden.
Prescriptive = look at actual use

Question 15

Divisibility of appurtenant easements

Answer 15

The burden that the division places on the servient owner must not exceed the burden that the parties contemplated in the original grant

Question 16

Divisibility of easements in gross

Answer 16

Usually not allowed UNLESS all parties have to act as a unified whole (and any one party can veto resource extraction) – cannot divide in a way that encourages over use. – “Tragedy of the commons”
- Tragedy of the Commons Can quickly lead to unsustainable practices.

Question 17

Divisibility of easements in gross:
Who gets the value of the additional uses of the same easement area? (expanding to fiber optics, railroads to trials)

Answer 17

If owner can still use property, then it’s probably the owner.
If easement holder can exclude owner, then maybe the easement holder (railroads).

Question 18

Can servient holder unilaterially relocate the easement?

Answer 18

Traditional rule = Never (only with consent)
Restatement 3rd proposed rule: Servient holder may relocate the easement if the relocation doesnt:
1 Lessen the utility of the easement
2 Increase the burdens on the owner of the easement
3 Frustrate the pruupsoe of the easement

Question 19

Top 10 easement terminators

Answer 19

(1) By the terms of the original grant
(2) By deed back to servient landowner
(3) By merger of the two parcels
- If the benefit and the burdened parcel comes into the same ownership, the easement is erased. You can’t burden your own land.
(4) Adverse possession of easement by servient landowner
- Exclusive, actual, hostile, open, continuous for statutory period.
- Non-use is not AP
(5) Abandonment (prolonged non-use with intent to relinquish ownership)
- Requires more than mere nonuse. There must appear to have been an intentional relinquishment of the rights granted. (Hickerson v. Bender)
- The intent to abandon can be shown by conduct that is “clearly inconsistent with an intention to continue to use the property” (Hickerson v. Bender)
- Such as failure to object to obstruction of easement (Hikerson v. Bender)
(6) By estoppel
- Lead someone to believe you aren’t needing the easement and they rely (misstatment (or conduct) & reliance & injustice)
(7) By statute (marketable title acts, etc.)
(8) By conveyance of servient land to BFP (conveyance w/o notice of easement)
(9) By foreclosure of an interest held by a third party with superior rights
- Wipes out junior leins and easements
(10) By impossibility
- Change has taken place that makes it impossible to accomplish the purpose for which the servitude was created.
- Ex: Access crossing is now at the bottom of a pond

Question 20

Real covenants v. Equitable servitudes

Answer 20

Real covenant = formal promises that become attached to the land (enforced at law)
Equitable servitude = informal promises that attach. (don’t need privity***)
Will refer to them both as capitol C Covenants.

Question 21

Requirements of Covenants (RC & ES)

Answer 21

(1) Writing (by formal deed-type unless equity implies)
(2) Intent to run
(3) Notice (RC by recordation; ES by recordation or facts on the ground)
(4) Touch & Concern the land
(5) Vertical Privity (RC only)
(6) Horizontal Privity (RC only)

Question 22

Covenants: Privity Element

Answer 22

Vertical Privity
- Chain of title privity. Just explains the relationship between the current interest holder and the promise maker.
- Three situations where vertical privity’s absence may prevent enforcement of covenant:
1. Transfer of less than the predecessor’s full estate (tenant-subtenant); FSA to life estate, etc.
- Practice tip: LL should require assumptions so that new person is bound no matter what.
- BUT modern rule: transfer of any interest is sufficient
2. Adverse Possession
3. Third-Party Beneficiaries (covenant between two parties benefits a third party)

Horizontal Privity
- Relationship between the two parties that made the promise.
- Think “not mere neighbors” ← Buzz
3 Examples of Horizontal Privity
1. Landlord Tenant
2. Mutual interests in the same parcel of land (maybe on eholds easement on another’s land)
3. Grantor-Grantee (or buyer-seller)

IF NO PRIVITY = can still enforce at equity

Question 23

Covenant: Touch and Concern element

Answer 23

Anything that pertains to the land (it’s value &/or it’s use)

Examples
Use restriction (& promise of exclusivity)
Promise to pay rent
Promsie to maintain/pay carrying costs
Promise of access
Promise to repair or improve premises
Option to renew

For the Burden to run:
Buden must touch and concern land AND benefit must touch and concern land
- Burden doesn’t (usually) run if the benefit doesn’t touch

For Benefit to run:
Benefit much touch and concern

Question 24

Covenant: Intent to run element

Answer 24

Almost always have. Courts are casual about it.
If a covenant touches and concerns the land, the courts are willing to presume the intent to run in the absence of contrary evidence.

Question 25

Covenants in gross

Answer 25

Problem where the benefit holder is not another land parcel.
Majority rule = the burden of a covenant cannot run if the benefit is in gross.

Why?
- Benefit has to touch and concern some other land
- These are usually just personal obligations
- Promise to buy all water from specific co
- Promise to buy all lime from specific quarry
- Promise to use a specific builder if you build – Caullett v. Stanley

Question 26

Covenants v. Easements

Answer 26

Covenants
- A binding obligation that runs to successive owners of the same land.
- Controls how owners use their own land for the benefit of neighbors
- Imposes obligations & benefits on whoever owns a given parcel

Easement
- A grant of a non-possessory use interest in someone else’s land
- Operates as a non-revocable permission for an owner to enter and make use of someone’s land (in a specifically defined way).
- Burdens (and benefits) parcels/holders

Question 27

Covenants v. Contracts

Answer 27

Covenants
The benefit and burden attach to the land and continue to bind successive owners.

Contracts
Only bind the parties to the contract`

Question 28

Justifications for common interest communities

Answer 28

Prevent tragedy of the commons (govern amenites and shared elements)
Prevent freeriding (pay for amenities and shared elements.

Question 29

Shared features of common interest communities

Answer 29

1. Planned/mandatory membership (owners = members)
2. Manage through a board of an association
3. Assessment authority (sharing costs)
4. Restrictions on use & shared use provisions (servitude governance regime)

Question 30

When do common interest community covenants touch and concern land?

Answer 30

Anything that pertains to the land (it’s value &/or it’s use) – but really focused on property values.
When you’re dealing with CIC, courts don’t get too hung up on touch and concern stuff. Line gets super blurry.

Question 31

Types of CICs and their differences

Answer 31

Homeowners’ Associations
- Everyone owns his/her parcel
- Association owns common areas

Co-Operatives
- “Owners” are actually tenants with leasehold right to their units.
- All units owned by association.
- LL-T and corporate hybrid

Condominimums
- Everyone owns his/her own unit (3D box of space)
- Everyone is TIC of common area
- Association is manager of common areas

Question 32

What is the difference between HOA and Conominiums?

Answer 32

Ownership structure.
Condo = Association DOESN’T own real property. Everyone TIC of common areas.
HOA = association owns common areas.

Question 33

Huge benefit to having common interest communities

Answer 33

The covenant regime is dynamic. (Could be detriment as well)
Can be change and controlled according to the mechanisms in the governing documents.

Question 34

How does the SOURCE of the CIC covenant impact its enforceability?

Answer 34

Original recorded governing documents
- Presumably enforceable if WIN & T/C (prop values). No privity problems.
- UNLESS arbitrary or violates public policy

Amendment to governing documents
- Meet procedural requirements per governing documents
- May need to be “reasonable” & applied equally
- Reasonableness = typically cost<benefit

Rules passed by Board of Directors
- Business judgment rule
Courts generally defer to corporate board decisions as long as the board acts:
1) for the purpose of corporation
2) within the scope of authority
3) in good faith

Question 35

Examples of statutes that override CIC rules

Answer 35

Cannot ban the flying of the American flag

RSMO
- says HOA’s cannot ban political signs (but can set number and size limits)
- Can’t ban chickens
- Can’t ban solar panels

Question 36

Best practice how to subdivide and create a CIC

Answer 36

1. Declaration
   - Record declaration containing covenants, conditions, and restrictions.
   - Can absolutely create a covenant on land that you own both ben and burden (unlike easement)
2. Plat
   - Subdidivde and refer to declaration in the plat (don’t need to, but good idea)
3. Deeds
   - Beset practice = point back to declaration

But what they do a sloppy job of (don’t have declaration, just stick covenants into each deed)?
Problems: (that Common Plan fixes)
1. What is the extent of the benefitted land?
2. Order of sale importance
- If developer selling lots sequentially (1, 2, 3, etc.) lot 3 can enforce a covenant on lot 1, since it was still held by the same owner and therefore became the benefitted land. However, lot 1 cannot enforce its covenants on lot 3 (when covenant placed on 3, developer no longer owned 1)
3. Gaps in covenant coverage

Question 37

To have a common plan subdivision must have:

Answer 37

Group of lots created by the same developer at the same time
Clustered together
Similar size
Most or all of the lots have similar covenants imposed on them

Question 38

How common plan doctrine works

Answer 38

An implied equitable servitude

No written covenants recorded in the chain of title for this lot but…
- When sales began, there was a general scheme or common plan of development which included the lot in question (INTENT)
- The buyer had NOTICE of the promise contained in those prior deeds for other lots (based on the common look of the neighborhood).
- - Placed on inquiry notice that all the houses around you look a certain way to look into OTHER properties deeds (“negative reciprocal easements”) – Sanborn
- - Burdening the land with something never in writing and imposing a restriction on an innocent party.

Question 39

Common plan rationale

Answer 39

If everyone excepted this area to be developed a certain way and they didn’t put a declaration down but were relying on covenants in deeds, the fact they forgot to put the covenants in a few of the deeds shouldn’t deny the future property owners of their expectation of the common plan.

Question 40

Common plan judicial uses

Answer 40

(1) defines the extent of the benefitted land; land outside the scope of the common plan is not benefitted (party imposing covenant continues to own adjacent or nearby land);
(2) allows courts to include, as part of the benefitted land, lots that had already been transferred by the developer to other owners at the time the covenant was imposed on the burdened lot in question (Van Dam);
(3) allows courts to “imply” a covenant on a lot that had no express covenant imposed upon it by the developer (Sanborn) (implied reciprocal negative servitude: When the owner of two or more lots that are closely-situated and related to each other sells one with restrictions that benefit the remaining land, the servitude is shared, and, while the restriction lasts, the owner of the unsold lot or lots cannot do anything that the owner of the sold lot is not allowed to do);
(4) The common plan, as carried out by actual and visible construction of houses or other improvements, gives notice of implied covenants to persons who buy lots that are implicitly, but not expressly, burdened by such covenants (Sanborn)

Question 41

Covenant Interpretation

Answer 41

Black Letter =
Only if the intent of the covenant is clear and unambiguous will it be given effect.
Covenants are to be construed narrowly.
No violation unless language clearly prohibits the use in question.
Resolve all doubts against party seeking to enforce.
The interpretation of covenants is a question of law.

Extreme example = “no trailer home can be erected or placed” court: no violation bc parking is not the same as placing

Question 42

Covenant termination and enforcement defenses

Answer 42

1. Waiver
   - Intentional relinquishment of a known right.
2. Unclean hands
   - Plaintiff is culpable and therefore not deserving equities help (minor violations may be fine though)
3. Change in circumstance (frustration of purpose)
   - Change INSIDE the land subject to the covenants
   - Conditions in the area affected by the covenants have so changed that enforcement of the covenant can no longer achieve its purpose, the covenant will not be enforced (impossibility);
   - REALLY high bar
4. Abandonment
   - Based on INTENT of holders of benefit
   - Objective test: what would a reasonable person think about the continuing viability of the restriction?
   - Considering number, nature, and severity of existing violations;
5. Latches
   - You waited too long to enforce. Now would be unjust.