PRIVATE LAND USE CONTROLS

Question 1

Easement

Answer 1

grant of non-possessory interest that entitles its holder to some limited use/enjoyment of another’s land [servient tenement]

Question 2

Negative easements

Answer 2

More narrow in scope - entitles holder to compel servient owner to refrain from doing something that. but for the neg easement, would be permissible

• can only be created expressly - get it in writing!

Question 3

Settings neg easement appears in

Answer 3

1. Light
2. Air
3. Support
4. Stream h20 from artificial flow

“I the holder of a negative easement for ___ have acquired the right to compel my neighbor, the servient owner, to refrain from doing anything on her parcel in such a way that would impede my access to…”

Question 4

easement appurtenant

Answer 4

• benefits its holder in his physical use/enjoyment of his property
• dominant tenement: derives benefit
• servient tenement: bears the burden

Question 5

easement appurtenant example

Answer 5

A grants B a right of way across A’s land so B can more easily reach Bs land

As land serving B’s easement - servient ten.
Bs land deriving benefit - dominant ten

B has easement appurtenant to Bs dominant tenement bc allows B to derive benefit from Bs own land

Question 6

Easement appurtenant transfer

Answer 6

• Passes automatically with dominant tenement w/o any mention of transfer
• Burden of EA will pass with servient tenement unless bonafide purchaser w/o notice

Question 7

Easement in Gross

Answer 7

Confers to its holder only some personal/financial gain not linked to any use/enjoyment of any of easement holder’s land.

the servient land is burdened and there is no dominant tenemant

ex: right to lay utility lines; swim in anothers pond

Question 8

Easement in Gross transfer

Answer 8

not transferrable unless for commercial purposes

Question 9

Scope of easements

Answer 9

Set by T&C that created it and there cannot be any unilateral expansion. (Brown)

Question 10

How aff. easements are created

Answer 10

1. Prescription - by analogy to adverse possession (continuous for stat period; open and notorious; actual entry need not be exclusive; hostile)
2. Implication - implied from prior use (if apparent, continuous and r’ably necessary) (Van Sandt)
3. necessity - conveys part of land w/o no way out
4. Grant - to endure for more than 1 year must be in writing that complies with formal elements of deed

Question 11

License

Answer 11

• Mere privilege to enter anothers land for some delineated purpose. This act w/o license would be a trespass.
• Not subject to SOF - informal and can be created orally
• Revocable unless estoppel applies (only when licensee invested substantial $, labor or both in r’able reliance on the license continuation) (Holbrook)

Question 12

Profit

Answer 12

Gives holder right to enter servient land and take from it the soil or some natural resource.
-Shares all the rules of easements

Question 13

Easements terminated

Answer 13

When dominant and servient tenements come into the same ownership - merger.

Question 14

Willard v. First Church of Christ

Facts

Answer 14

Mcguigan owned 2 adjacent lots and sold both titles to Peterson, but she reserved a parking easement on one of the lots for the Def. during chuech hours. Provision in the deed that stated the conveyance was “subject to an easement for automobile parking during church hours for the benefit of the Church…such easement to run w the land only so long as the property that benefits from easement used for Church purposes.”

Peterson sold the lots to P but that deed didnt mention the easements. P discovered easements months later and brought action to quiet title on property. TC ruled for Ps and Church appealed.

Question 15

Willard v. First Church of Christ

Holding

Answer 15

The church is entitled to use the lot during church services bc McGuigan created an easement for the Church to use when she originally sold. Grantor may reserve an interest in the land to be granted for use by 3rd party..

Question 16

Willard v. First Church of Christ

Reasoning

Answer 16

The deed containing the interest was properly recorded by Peterson thereby giving Willards notice of its existence. Also I twas clear the church used the lot for parking during church services, and they could not argue that they were prejudiced by it.

Question 17

Holbrook v. Taylor

Facts

Answer 17

Holbrooks owned a road and granted permission to a nearby mine to use it. After the mine closed, the Holbrooks built a tenant house on their prop and granted tenants permission to use the road. Taylors bought plot of land next to road and built a house, Holbrooks granted them perimission to use road for machinery, material and other activities necessary for the construction of the house and general improvement of the land. After house was built, Taylors got permission from Holbrook to widen the road, put in a culvert and cover it in gravel at significant cost. Dispute arose over use of road and Holbrooks put steel cable across it to prevent Taylor’s use. Taylor’s brought suit to remove cable and for declaratory judgement that they could use road.

Question 18

Holbrook v. Taylor

Holding

Answer 18

Holbrook could not do this p once they induced action on part of the Taylors by giving them permission to use and improve the land and the improvement resulted in considerable expense to them, Holbrook lost the right to revoke the license. (estoppel) Doing so would constitute unjust enrichment for Holbrooks.

Question 19

Holbrook v. Taylor

Reasoning

Answer 19

Taylor was originally a licensee but the license transformed into an easement when he made substnatial expenses to improve the road in r’able reliance on the permission he received from Holbrook.

Question 20

Holbrook v. Taylor

Rule

Answer 20

Where owner of land has granted a license to another to use and make improvements on the land, and the licensee relying on the permission does use and make improvements at considerable costs, the license is irrevocable.

Question 21

Van Sandt v. Royster

Facts

Answer 21

Laura Bailey owned 3 adjacent lots and installed sewer drains that ran underground through 2 of the lots and connected to main city line. Bailey transferred title to all 3 lots to dif owners. No deed mentioned easements. Van Sandt’s basement flooded w sewar and he brought suit to enjoin Royster [center lot owner] from using the sewer system.

Question 22

Van Sandt v. Royster

Holding

Answer 22

For Royster

Question 23

Van Sandt v. Royster

Reasoning

Answer 23

Easement by implication arises when language of deed is silent but there is an inference of an easement based on the intentions of the parties to a conveyance of the land.

Expectation of a grantor and grantee that existing use will continue after transfer.

Original purchaser of Sandt’s lot was aware of the sewer drain and sand’t had constructive notice of the drain given the house was equip w modern plumbing.

Easement was necessary for the use of Royster’s property.

Court found quasi easement of prior use which is applied here as a matter of law because: (1) there was common ownership in the land originally; (2) prior use in the lot before prop was subdivided (3) must be apparent upon inspection that property used for sewer access (not meaning visible) (4) continuing use that’s necessary

Question 24

Brown v. Voss

Facts

Answer 24

P has an express easement of a right of way over def’s land. P acquired new parcel of lanf adjoining his previously owned one and sought to extend the easement to benefit his new property. Spent 11k preparing to build this home that was on both parcels and def placed a fence, logs, and concrete stump on the easement land to prevent him from further using it. P sued to have obstructions removed and Voss countered to prevent P from using easement for access to anything other than original land.

Question 25

Brown v. Voss

Holding

Answer 25

P Brown’s conduct constituted an actionable misuse of easement when he tried to unilaterally extend it to benefit his new parcel.

Question 26

Brown v. Voss

Reasoning

Answer 26

The express terms of the grant do not address the new parcel, and it’s actually in violation of the grant to read it as such [trespass]. The scope of easements set by T&C and cannot be unilaterally expanded.

Question 27

Brown v. Voss

Rule

Answer 27

If an easement appurtenant to a particular parcel of land, any extension thereof to other parcel is misuse of the easement. Although this is prevailing view, a court of equity may decline to issue an injunction when the servient estate suffers no increase burden and no damages from the misuse.

Question 28

Covenants

Answer 28

Starts as a K regarding the land

Born bc scope of negative easements too narrow, and most covenants are restrictive.

Question 29

Covenants running w the land

Answer 29

Traditional approach distinguishes b/w 2 types of land use interests - real covs and equitable servitudes. Restatement uses term cov running w land which is concerned w whether the interest is capable of binding successors to originally promising parties

Question 30

Spencer’s Case

Answer 30

K to bind ones successors must meet 4 requirements:

1. writing
2. intent
3. touch and concern
4. horizontal and vertical privity

Question 31

Horizontal privity

Answer 31

-refers to nexus b/w A and B -original covenanting parties
they must be in succession of estate (at time of promise A and B were in grantor/grantee relationship; OR LL/tenant OR creditor/debtor)
-only needed for burden of real cov to run
-WITHN

Question 32

Vertical Privity

Answer 32

• Req for both burden and benefit to run
• b/w one of covenanting parties and a successor in interest
• demands nonhostile nexus b/w A and A1
• WITV

Question 33

Tulk v. Moxhay

Facts

Answer 33

Tulk sold land (a square garden) w covenant requiring the vendee, his heirs and assigns to keep the land in an “open state uncovered w any building.” The ∆ acquired the same prop thru a deed that was silent about the covenant. but had had actual notice of its existence. Tulk, who still owned several houses on the land, sought an injunction preventing Moxhay from disturbing the square garden

Question 34

Tulk v. Moxhay

Holding

Answer 34

The covenant should be enforced against Moxhay as well. A party purchasing real property may not receive rights to the property greater than those owned by his seller.

Question 35

Tulk v. Moxhay

Rule

Answer 35

if a restrictive covenant is attached to property by the owner, no one purchasing w notice of that covenant can stand in a dif situation from the party from whom he purchased.

Question 36

Equitable serv

Answer 36

Promise regarding the land that equity will enforce against successors.

Question 37

Prop theory of eq servs

Answer 37

after og promisor conveyed the burdened land, promisor cannot be sued on the covenant either in law or equity

• og promisor lost control of the land when she assigned her entire interest and it would be unfair to penalize her for the conduct of some future owner
• original promisor also may not enforce restrictions after he conveyed the benefitted land

Question 38

Neponsit Property Owners

Facts

Answer 38

Neponsit Reality Company subdivided a plot of land for residential development. The deeds contained a covenant requiring the purchaser and all successors to pay an anuual fee to an owner’s association for maintaining common areas like roads and other public purposes. The cov gave Neponsit and its successors and assigns the right to foreclose a lien for failure to make payment. Cov expressly stated it was a cov running w/ the land. Neponsit Prop Owners Association was formed. Emigrant Industrial Savings Bank (∆) bought a property in the subdivision and their deed contained the covenant.

Question 39

Neponsit Property Owners

Issues

Answer 39

(1) Does a cov contained in a deed requiring payment of $ for land that is in connection with the land subject to the burdened land “touch and concern” the land?
(2) Does prop owners association that technically owns no interest in the property have privity of estate to enforce the covenant?

Question 40

Neponsit Property Owners

Rules

Answer 40

(1) Touch and concern is satisfied if the cov in effect substantially alters the legal rights which otherwise would flow from ownerhsip of the land that are connected w the land. the promise must be relevant and pertaining to the parties as landowners and not citizens at large. This is generally a question of degree.
(2) A corporate entity created solely for the purpose of advancing the common interest of property owners may be recognized as having privity (standing) to bring suit to enforce cov running w land

***Neponsit 1st major decision on the validity of a v important type of cov - the assessment cov in common interest communities

Question 41

Restatement (3rd) of Property Servitudes

Answer 41

provides that a homeowner association has standing to enforce development covenants unless the declaration of covenants denies it

Question 42

Restatement Approach

Answer 42

• treats neg promises the same as easements - all owners and possessors of burdened land are bound by neg cov regardless of the extent of their interest or the manner in which they obtained the interest
• eliminates touch and concern and replaces w idea that covenant is valid unless it is “illegal, unconstitutional or against public policy”
• servs in gross can be terminated or modified by court w consent of beneficiaries who are located while maintaining the interests of those who cannot be located