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Property Flashcards

1
Q

General rule

Capture of a fugacious resource

A

First into possession and control owns the resource

Post: mere pursuit is insufficient for ownership

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2
Q

Exceptions

Capture of a fugacious resource

A
  1. Ratione Soli: owner of land owns fugacious resource
  2. when possession and control is difficult, custom dictates who owns

Ghen: custom of whaling established control

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3
Q

Additions

Capture of a fugacious resource

A
  1. Wrongful interference: even if fully not in control, wrongful interference messes with constructive possession; especially trade; lawful competition ok
  2. Animus revertendi: domesticated creature or animals that return to private property are not fugacious resource
  3. Rule of increase: offspring belong to mother’s owner

Duck case
barry bonds case: contructive owner (with wrongful interference) & actual possessor split the ball’s proceeds

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4
Q

General rule

Rule of finders - lost property

A

Finder wins against all except previous possessor and true owner

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5
Q

Exceptions

Rule of finders - lost property

A

Owner of locus in quo owns if:
attached to soil
trespassor finds
in private location?
owner is in occupied area?

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6
Q

rule

Mislaid property

A

owner in locus in quo owns until true owner returns

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7
Q

rule

finder of abandoned property

A

finder owns unless private property

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8
Q

Elements of

Adverse possession

A
  1. Continuous for statutory period
  2. Exclusive and actual
  3. Open and notorious
  4. hostile and under claim of right
  5. (CA) property taxes

AP creates NEW TITLE

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9
Q

In depth:

Continuous for statutory period

A
  1. continuous for how it is normally used. so summer home = summer only; undeveloped = dump trash
  2. Tacking = privity = anything above a mere trespassor
  3. Disability = note date of entry & when disability ends
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10
Q

in depth

Exclusive and Actual

A
  1. Exclude others as a true owner would
  2. some jxns require improvement, cultivation, or boundries
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11
Q

In depth

Open and notorious

A
  1. reaonable true owner would notice that someone is on property
  2. No de minimus: if de minimus, owner would need actual knowledge of intrusion
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12
Q

Open and notorious with chattels

A
  1. Discovery rule: clock begins ticking when owner knows or should have known cause of action
  2. Make a demand rule: clock begins ticking when owner makes a demand and gets rejected
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13
Q

in depth

Hostile and under claim of right

A
  1. Hostile = unauthorized
  2. claim of right = acting as if he owns property
  3. State of mind needed: no state of mind, good faith, bad faith
  4. Color of title: faulty instrument, must enter and possess and only get that part they possess

invited guest cannot become AP

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14
Q

intervivos

Acquisition by gift

A
  1. intent of present, immediate transfer
  2. Delivery
  3. Acceptance
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15
Q

in depth

intent of present, immediate transfer

A
  1. no future gifts
  2. condition subsequent is ok
  3. condition precedent not ok
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16
Q

in depth

Delivery

A
  1. Actual: generally, if it can be handed over, it must be
  2. constructive: difficult or impossible to physically hand over (keys to a car)
  3. Symbolic = ok in CA
  4. Third party: doner to donee’s agent = instant ; doner to doner’s agent = wait until delivery
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17
Q

Causa mortis

Gift

A
  1. same elements but there is an expectation of a death
  2. revocable
  3. if die to another reason, instantly revoked
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18
Q

Limits on property

Public property

A

must open your private land to public so they can enjoy navigable waters

just like a municipality, home owner association must do same

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19
Q

Limits on property

Right to abandon

A
  1. intend to abandon property to world
  2. affirmative voluntary act of abandonment
  3. subsequent new party appropriates with intent to own

Cannot abandon land

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20
Q

Limits on property

Right to destroy

A

generally you can UNLESS public policy reasons: value of neighbors land, criminal law, specific duties to others.

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21
Q

Limits on property

Right to transfer

A
  1. no total restraints on alienation
  2. reasonable restraints are ok: charity, Life estates, against a specific person, and only for a limited time
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22
Q

Estates

Life estate

A
  1. cannot AP
  2. subject to law of waste
  3. MUST BE IMMEDIATELY FOLLOWED BY SOMETHING, OTHERWISE REVERSION
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23
Q

Rules of will construction

A
  1. no partial intestacy
  2. when it is difficult to tell, read a vested remainder to a contingent remainder
  3. LOOK AT INTENT TO GRANTOR AND CONSIDER IT AS A WHOLE
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24
Q

Law of waste

A
  1. Affirmative waste: waste caused by affirmative acts of the tenant
  2. permissive waste: tenant’s failure to make normal repairs to property, not stopping deterioration
  3. not waste to continue use of a mine, waste to open a new mine

life estates and leaseholds

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25
Q

Rule on remainders

A
  1. LE, CR, CR …
  2. LE, VR, EI …
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26
Q

STEPS

Rule against perpetuities at common law

A
  1. is it a CR, EI, or VRSTO
  2. who are the lives in being at the time of grant
  3. Ask what will vest this
  4. Say: will we know forsure within 21 years of the deaths of LiB @ time of grant if it will vest?
  5. Blue line the remainder

Will = at death
Deed = at delivery

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27
Q

RAP class gifts & rule of convenience

CL

A
  1. all members of a class grant must meet all conditions within 21 years of death of LiB, or entire future interest is void
  2. Rule of convenience: Class will close upon first vesting & no new born children will share; others alive are in class
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28
Q

Reforms to RAP

A
  1. Reduce technicalities: any gift to class set to vest after 25 years is now 21 by judicial construction
  2. Cy pres
  3. Wait and see

90 years for CA wait and see
any gift to “widow” is presumed to be then-living spouse

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29
Q

Co-tenancies

Tenancy in Common

A
  1. Default state (reverts back)
  2. alienable, devisable, descendible
  3. 70%, 30%
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30
Q

Co-tenancies

Joint tenancy

A
  1. Right of survivorship
  2. four unities:
  3. title: acquire title from same instrument
  4. time: at the same time
  5. interest: equal shares
  6. right to possession
  7. only alienable
  8. 100%,100%

CL: need for unities or else TiC
Modern: explicitly state Right of Survivorship

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31
Q

Co-tenancies

transfer of JT

majority rule

A
  1. can transfer to yourself without strawman to sever JT
  2. a lease will not sever JT; dont need permission

transfer makes it TiC (not lease)

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32
Q

uniform death act and slayer statutes

A
  1. survive JT by 120 hours, or split
  2. murder severs JT, makes it TiC, killer loses right to survivorship
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33
Q

Co-tenancies

Tenancy by Entirety

A
  1. all four unities plus marrigage
  2. right of survivorship
  3. only alienable and only with permission
  4. creditors cannot reach TbE unless IRS
  5. cannot unilaterally destroy

Not in CA
make sure you are officially married first.
cant cut spouse out in Will

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34
Q

Co-tenancies and mortgage

does a mortgage survive the death of a mortgager as a lien on the property?

A
  1. Title theory: mortgage severs JT or TbE
  2. Lien theory: does not sever JT
  3. NO, does not survive because the interest disappears on death b/c survivorship

Liens are a promissory note, you take possession when i cannot pay back

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35
Q

Partitioning

A
  1. Cotenants have an absolute right to sell (unless TbE)
  2. in-kind partition
  3. partition by sale
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36
Q

two requirements

Partition by sale

something tells me i can never partition by sale

A
  1. physical attributes of the land are such that in-kind are impractible or inequitable
  2. interest of owners would be promoted by partition by sale

think of like a weird fraction
unreasonable restraint on alienation!

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37
Q

Ouster and rent from co-tenants

A
  1. cotenants do not owe eachother rent unless an agreement or an ouster
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38
Q

requirements for an ouster?

A
  1. barring physical entry onto property
  2. denying co-tenants claim to title and asserting complete ownership

phyiscal bar - a letter not enough
2nd requirement is near AP
but remember cannot AP a cotenant

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39
Q

general rule

profits, expenses and taxes of cotenancies

A

cotenants share taxes, expenses, profits, and rents from 3rd parties

absent an agreement to the contrary

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40
Q

Accounting

A

Demand for proportional receipt of profits and rents

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41
Q

and exception

contributions

A
  1. demand to eachother for proportionate payment of expenses, repairs, and taxes
  2. However, tenant in sole possession may be held to pay taxes and expenses exclusively without contributions (can deduct from rent from 3rd party however)
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42
Q

if one cotenant makes repairs/improvements

A
  1. some jxn do not require contribution at time of repair/improvement
  2. upon partition, improver can recoup costs
  3. upon partition by sale, improver gets credit from increased sale price
  4. upon physical partition, improver gets improved aspect
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43
Q

Leaseholds

Term of years tenancy

A
  1. for any fixed period
  2. can end on a condition
  3. no notice of termination necessary
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44
Q

Leaseholds

Periodic tenancy

A
  1. at a fixed period that continues until notice of termination (year to year, month to month)
  2. notice of termination: 1 year = 6 months at latest; equal to the length of period for shorter periods
  3. CL: untimely notice of termination = automatic renewal
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45
Q

Leaseholds

At will

A
  1. one or both can end the lease at will
  2. if lease gives LL the right to terminate, law will give same right to T
  3. if lease gives T only, determinable LE
  4. most jxn require notice of termination = rent payment period
  5. can end by death, assignment by T, transfer LL, waste by tenant
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46
Q

Leaseholds

At sufferance

A
  1. Either evict = ends tenancy
  2. accept rent and consent to new tenancy = periodic tenancy created = to timing of rent

holdovers
monthly rent = month-to-month

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47
Q

unlawful discrimination in leases

Civil rights act and FHA

A
  1. no racial discrimination
  2. prohibits discrimination based on a series of enumerated characteristics in sale, rental, and ads of property
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48
Q

Unlawful discrimination in leases

exceptions

A
  1. single family dwellings with no broker or ads, can discriminate based on sex/gender in small properties (renting a room) ; owner who lives w/ roommate
  2. in CA: you can advertise
  3. Wetzel: landlord has a continuing duty to allow enjoyment without discrimination

this applies to owners
some jxn’s allow occupation discrimination (no lawyers!)

49
Q

Duty to put tenant in possession

A
  1. English rule: duty to put tenant into possession
  2. American rule: no duty, tenant must evict = only give right to possession
50
Q

Sublease v. assignment

Assignment

A
  1. first tenant conveys ENTIRE interest to next tenant
  2. creates privity of estate b/w original landlord and second tenant
  3. thus second tenant owes rent directly to landlord
  4. privity of K stays with first tenant and landlord
  5. landlord can take rent from first tenant or next tenant but not both

privity of estate = a relationship in land
privity of K = a relationship in contract

51
Q

sublease v. assignment

Novation

A
  1. agreement from landlord to release first tenant and create new contract with next tenant
  2. releases that tenant from liability

must be an explicit thing otherwise privity of K remains

52
Q

sublease v. assignment

Sub-lease

A
  1. first tenant conveys less than ENTIRE interest in next tenant (even a day less)
  2. creates no privity of estate b/w landlord and next tenant and no privity of K
  3. thus no rent
  4. first tenant still has privity of K

the actual words of conveyance are not dispositive, was the entire thing given? if yes, assignment

53
Q

Restrictions on assigning/subleasing and dumpor’s rule

A
  1. Majority rule: can unreasonably and arbitrarily withhold consent to an assignment for whatever reason except discrimination
  2. Minority rule: L must provide a reason on commercially viable grounds for rejecting the sublease
  3. Rule in Dumpor’s case: if allow one assignment, allow future ones unless agreement to contrary

minority rule = CA
for the minority rule = allowed to deny if competitor or if next tenant is financially unstable

54
Q

Self-help?

Eviction

A
  1. No self help to regain possession of land
  2. use summary proceedings!
55
Q

what if tenant abandons?

option 1

A
  1. Accept it and terminate the lease
  2. T will owe rent due @ that time & possible future damages such as any ads they have to do
56
Q

what if tenant abandons?

option 2

A
  1. Reject surrender & enforce lease
  2. CL: no duty to mitigate
  3. Modern: LL must mitigate by making reasonable effort to find new tenant
  4. what is reasonable? advertise, anything you can
  5. if you relet at only half price, tenant must pay difference = make the tenant whole
  6. if landlord for more? some jxns allow extra to go to original tenant
57
Q

what if tenant abandons?

option 3

A
  1. re-take possession and relet
  2. T is still bound to the lease but L will be collecting from next tenant
58
Q

Eviction

Actual eviction

A
  1. T is deprived of any part of physical access or told to get out
  2. legal duties are done

“dont use this part anymore” = actual eviction

59
Q

Eviction

constructive eviction

A
  1. Rule: deprive tenant of substantial use and enjoyment of the property and render the premises unsuitable for the purposes for which they are leased

home -> not home
office -> not office

60
Q

Eviction

Constructive eviction remedies?

A
  1. leave within reasonable time and no more rent
  2. stay and sue for damages
  3. there is no eviction for a brief problem “transitory & fleeting”

when it is neighbors being a nuisance or an issue, how much control does the landlord have over them?

61
Q

Implied warranty of habitability

A
  1. Maj: only for residential apartment leases
  2. Elements:
  3. Defect dangerous to human health (local health codes can help)
  4. Notice
  5. Reasonable period for repair
  6. Touchstone: not convenience, comfort, niceness
62
Q

Implied warranty of habitability remedies

A
  1. quit and stop paying rent
  2. remain and repair and charge LL/deduct from rent
  3. Remain and reduce or withhold rent
  4. AND
  5. sue for damages
63
Q

Landlord

Common law tort-based duties

A
  1. maintain premises reasonably free of dangerous defects @ time of lease to public
  2. no fradulent misrepresentations about premises
  3. disclose latent defects
  4. maintain common areas safely!!!!! (lobby, staircase, parking)
  5. CL no general duty to repair but if they do, not negligently
  6. some jxn, try to abate nuisance & immoral conduct
  7. seasonal or shortterm furnished dwelling, strict liability for defects
  8. no retaliatory eviction !!!

all these are negligent standard

64
Q

Tenant duties

A
  1. pay rent
  2. commit no waste
  3. maintain easy normal wear and tear (lightbulb)
  4. no illegal purposes
  5. take care of guests
  6. inform LL of damages
  7. vacate at end of term
65
Q

Law of Fixtures

A
  1. once movable chattels become attached to the land
  2. personal prop becomes real property
  3. the more complicated and more permanent more likely to be fixture
  4. more substantial damage to remove = more likely to be fixture
  5. not yours anymore bro
66
Q

Contract of sale

A
  1. contract –> closing
  2. at contract, you promise good and merchantable title
  3. at closing, transfer of title
  4. in between, inspection

at closing, contract merges into deed and disappears
no merchantable title = unknown encumberance for example = buyer entitled to rescind

67
Q

Statute of frauds for contract of land

A
  1. description of property
  2. price
  3. signature of party to be charged
68
Q

Statute of frauds for contract of land

exception

A
  1. Estoppal: in reasonable negative reliance
  2. can get specific performance (make it happen!)
  3. can get damages
69
Q

3 rules

Doctrine of equitable conversion

A
  1. Majority: the buyer of property is considered owner as of date of sale contract, even if closing and physical transfer takes place later thus buyer is responsible for any risk of loss after date of K
  2. minority: does not follow until deed is handed over
  3. other: risk of loss = in possession
70
Q

at Common Law

Duty to disclose defects

A
  1. Caveat emptor: no duty to disclose defects, inspect it yourself
  2. exceptions:
  3. seller cannot actively conceal defects
  4. seller cannot make active misrepresentations
  5. fiduciary duty: must disclose

examples for each
actively hide a hole in floor
does it leak? nah bro chill
lawyer client

71
Q

Modern erosion of caveat emptor

A
  1. Most jxn (CA): hold that a seller has affirmative duty to disclose all known material defects
  2. Material? important to decision to buy or afffects value or desireability of property
  3. Known? actual knowledge or should have known depending on jxn

stigma statutes: no need to disclose aids or murder

72
Q

Remedies for breach of sales K

know which is best for seller and buyer

A
  1. Specific performance: one party forces other party to go through with it (best for buyer)
  2. damages: seller breaches by not giving marketable title (american rule: expectation damages back / english: only get deposit back)
  3. Recession & retention of damages: buyer breaches and seller has option to rescind and keep down payment
  4. lien = seller breaches and buyer places lien on property
73
Q

The Deed

General warranty deed

A
  1. Promises of myself and everyone behind me
  2. best one for buyer
74
Q

The Deed

Present covenants of GW deed

A
  1. Covenant of seisan = I own it
  2. Covenant of right to convey = I can sell it
  3. Covenant against encumberance = no encumberances

Majority rule: do not run with the land

breached at moment of passing
Iowa: all 6 run with land

75
Q

The deed

future covenants of GW deed

A
  1. Covenant of GW - if anyone with superior title comes, ill compensate you then (after court ruling)
  2. Covenenant of future assurance (i will make sure to sign anything remaining)

run with the land

76
Q

The Deed

Special warranty deed

A

I only make those promises as to myself
cannot sue seller for things before him

77
Q

the deed

Quitclaim deed

A

no promises whatsoever so dont talk to me

78
Q

the deed

Elements of a deed

A
  1. description of property conveyed
  2. consideration: a dollar and other valuable consideration
  3. signature of seller
  4. promises

consideration: you do a low amount for when you get sued cause that is what you owe lol

79
Q

the deed

delivery deed

A
  1. delivery = all types
  2. intent to immediately disposses

cannot continue to keep using it
or do a letter with both names like the case
or try to sell it later

80
Q

delivery of deed

Estoppal by deed

A
  1. when grantor conveys land to grantee that grantor does not own, and the grantors conveys the title to the land
  2. if grantor later acquires title to land, grantor is estopped to deny he had title at the time of the deed and that has passed to grantee

automatically passes

81
Q

Mortgage

A

it is a remedy, I ask for 150k and give bank the right to forclose

one property can have multiple mortgages

82
Q

Mortgage

Priorities

general rule

A
  1. Mortgages have priority over each other in order which they are made, first to last
83
Q

the order

when forclosure sales happen

A
  1. court and attorney meh
  2. Payment to loan that was foreclosed
  3. payment to junior lien/mortgage (anything subsequent) (not to senior liens)
  4. anything remaining to debtor

not to senior liens = THESE SURVIVE and run with land
buyer will probably pay alot less to quickly pay back to the senior mortgage/lien
b/c you do not want mortgage on your house that someone else has to pay

84
Q

Mortgage

Priorities exceptions

A
  1. Purchase money mortgage has priority over anything (start here and go subsequent by time)
  2. Marshalling = w/ separate properties = “senior lender use other land to see if you can get money back before foreclosing both”

PMM = loans that purchase the land are PMM
Marshalling is a fairness thing between banks, a request, a plea for mercy

85
Q

Foreclosure principles

A
  1. borrower must receive notice of action
  2. notice to the public to attract bidders
  3. if the sale does not cover unpaid debt, lender can seek deficiency judgment against borrowers personal property
  4. these have protections = if sale does not yield fair market value, no deficiency judgment
  5. CA goes step further = no deficiency judgment on PMM
86
Q

Protections in procedure of foreclosure

A
  1. Reinstatement = right to reinstate loan if late payment within certain period by paying late payment
  2. CL equity of protection = BEFORE foreclosure sale, if you are in default, you win lottery & you have right to pay back full loan = foreclosure must be called off
  3. Statutory equity of protection = borrower has right to pay a set amount (usually foreclosure price) to successful bidder w/i a statutory period AFTER foreclosure

one more

87
Q

Motion to set aside the sale

A
  1. some irregularity in the process or if winning price too low
  2. “shock the conscious” & some extra element of unfairness
  3. Duties of good faith and due diligence by lender conducting sale
  4. inadequacy of price is not sufficient to demonstrate bad faith unless the price is so low it shocks the conscious
  5. if no good faith = set aside = an intentional disregard of duty or purpose
  6. due diligence = only one representative there, and only bid enough to make lender whole, no attempt fair market price (no ads), quickly sold at higher price
88
Q

Transfers of mortgage

A
  1. lender can transfer at will
  2. borrower can transfer a note as well but will often contain “due on sale”
  3. However, 3rd party can receive and assume the obligations of the note, becoming personally liable (o.g borrower will remain personally liable unless a novation)
  4. 3rd party can take property subject to note, and not personally liable (although land can still be foreclosed if note not paid)

due on sale = this is why it is unlikely, that if you have a mortgage on your house and you decide to sell half way in, mortgage stays attached to property and could be passed to new buyer and they could assume the debt but more likely the moment you sell and get money, you pay off remaining mortgage

89
Q

Recording system

CL rule

A

The interest first in time wins

90
Q

Recording system

Exception 1

A
  1. BFP w/ no actual, constructive, inquiry, or imputed notice
  2. if you got it for free, you aint the BFP

actual = dude i sold this to dumpy too
constructive = its recorded bro, the world knows, you should have checked
inquiry = you would know if you bothered to check it out, someone was living there

91
Q

Recording system

A recorded deed gives proper notice if

A
  1. meets formal requirements (some jxns want notarized)
  2. no technical defect (wrong name or property description)
  3. Properly indexed
  4. within Chain of Title (NO wild deeds)
92
Q

Recording system

In a race statute state

A
  1. the first to record their interest wins against all other claimants to the interest, no matter when the other claimants got their interests or what they know of others’ interests.
  2. we do not care about BFP
  3. if bank is second in line, their mortgage is gone
93
Q

Recording system

Race statute wording

A

“No conveyance of an interest in real property shall be valid against third parties (subsequent people, prior people) until it is recorded according to law.”

94
Q

Recording system

Notice statute state

A
  1. the BFP without notice who acquires an interest wins against a prior interest holder.
  2. Obviously, once someone records the interest, no future BFP without notice can ever come to exist because after recording everyone in the world is deemed to have notice of the interest.

the day you record, no BFP can come and take away

95
Q

Recording system

Notice statute language

A

“No interest in real property shall be good against subsequent purchasers for a valuable consideration and without notice, until the same be recorded according to law.”

96
Q

Recording system

in a race-notice statute state

A

the BFP without notice who records first wins against a prior interest holder who has not recorded yet. The BFP must be a BFP and record first to win. (CA)

97
Q

recording system

race-notice language

A

“Every conveyance of real property is void as against any subsequent purchaser or mortgagee of the same property, in good faith and for a valuable consideration, whose conveyance is first duly recorded. . . .”

look for first, previously, prior

98
Q

2nd exception

Shelter Rule

A
  1. Grantee from a BFP is protected like the BFP and prevails against all interests of which the BFP had no notice, even if the grantee has notice.
  2. The only person to whom the BFP cannot sell under the Shelter Rule is back to his own grantor (to prevent collusion).

we want to protect BFP ability to sell

99
Q

Recording system

How a BFP can wipe a mortgage

A

O owns blackare and gets mortgage on blackacre from Bank A
Bank A does not record
next day, O sells to B = no knowledge or notice of mortgage
BFP = mortgage is gone! because her ownership supersceded the prior interest

100
Q

Recording system

extras

Mother…
does not recording make invalid deed?

A
  1. Mother hubbard clause does not give notice
  2. Recording is not necessary for a valid deed! just for against 3rd parties
101
Q

Wild deed

102
Q

Servitudes

What is a servitude?

A
  1. An encumbrance as a right to limited use or control of a piece of land without possession of it → a burden on one’s estate for another’s benefit.
  2. Easements, licenses, profits, real covenants, and equitable servitudes.
103
Q

Servitudes

License

A
  1. permission to enter the licensor’s land = revocable oral or written permission to do something that would otherwise be a trespass
  2. Can become irrevocable:
  3. coupled with another interest = perhaps combined with profit
  4. by estoppal
  5. CA requires written licenses

you cannot transfer a license

104
Q

Profit a prendre

A
  1. a right to enter land one does not possess in order to take some resource (timber, minerals, game, fish)

similar to easement

105
Q

Easements

generally

two types
two ways

A
  1. appurtenant = attached to a dominant piece of land
  2. in gross = personal to an individual
  3. affirmative = permitting activity on servient land
  4. negative = preventing activity on the servient land
106
Q

Easements

Express Easement

A
  1. created by a deed, will, or written instrument that grants or reserves an easement
  2. can reserve an easement for a third party
  3. once recorded, it does not need to be identified in future grants
107
Q

Easement

Implied by prior use

A
  1. severance of title to land held in common ownership
  2. There is an existing, “apparent” (upon reasonable inspection, and not necessarily visible) and continous use when severance occurs
  3. There is reasonable necessity (some jxn strict necessity)
  4. some jxn require the parties intend the continued use

when land is split up, existing use might persist over newly formed parcels

108
Q

Easement

by estoppal

or the irrevocable license

A
  1. A license can no longer be revoked if the licensee expends labor or money in good faith and the licensor expects that reliance will occur
  2. CA and other jxns require writing
109
Q

Easement

By Necessity

A
  1. severance of title to land held in common ownership
  2. CA and other states require that the parties intend the continued use
  3. Majority = strict necessity = no legal alternative = if it can be done it must be done = exhaust all other possibilities no matter how expansive
  4. Minority = reasonable necessity = access is inadequate, costly, difficult
  5. two ways to get it the easement
  6. cheapest route
  7. last parcel to landlock you = apportion the costs from the unlucky parcel that got forced the easement

The necessity must be created @ time of severance of title of commonland

usually used to create access for landlocked parcel

110
Q

Easement

By prescription

basically by adverse possession

A
  1. open and notorious = such that a diligent owner would discover it
  2. adverse and under claim of right = same as AP
  3. actual and exclusive = some states permit minimal other users or general public, looser than AP
  4. Continuous and uninterrupted = same = if the owner interrupts the use sufficiently to cause it to cease and it restarts
  5. majority = must be a physical prevention
  6. minority = mere notice is sufficient to interrupt
111
Q

Easement

Transfer of easements

A
  1. Appurtenant = pass with the dominant and servient estates, unless agreement otherwise
  2. in gross:
  3. CL = not transferable
  4. minority = only commerical are transferable
  5. one stock rule = all transferees must act unanimously
  6. Modern = all are transerfable unless the parties would not have expected the result or unreasonable burden occurs
112
Q

Easement

Scope

A
  1. inferred from the intent of the parties and type of easement = presumed that anything reasonably necessary to the use and enjoyment of the easement is permitted = tech change
  2. CL = Easement cannot expand in scope to serve non-dominant land
  3. Minority = expanding easement

there is more

prescriptive easement = less susceptible to change because no original intent

113
Q

Termination of easements

10

A
  1. agreement to release the easement
  2. express easement ends if the servient parcel transferred the BFP and e.e was not recorded
  3. easement by necessity ends when the necessity ends
  4. destruction of the servient estate
  5. abandonment with the intent to abandon permanently
  6. Estoppal = servient owner relies on the dominant owner’s apparent abandonment. Non-use is not sufficient
  7. Merger = servient and dominant estates are acquired by one person
  8. Prescription = owner interferes with AP
  9. Expiration = if easement was temporary
  10. Condemnation = govt exercise eminent domain
114
Q

Negative easement

A
  1. at CL = right to stop neighbor from:
  2. blocking light
  3. blocking air flow
  4. removing building support
  5. interefering with flow of water
  6. modern = views, solar access historical and agricultural conservation easements
115
Q

to burden the successor = possibility of being sued

Real covenants

A
  1. promise must be in writing
  2. the parties must intend to bind successors
  3. promise must touch and concern the land
  4. covenanting parties must be in horizontal privity
  5. successor must be in vertical privity and take the same estate
  6. successor must take with notice of the burden
116
Q

benefit successor = right to sue

Real covenants

A
  1. promise in writing
  2. parties must intend to bind successors
  3. promise must touch and concern the land
  4. successor must be in vertical privity and take same or lesser estate
117
Q

Equitable servitude

A
  1. writing or a common plan
  2. intent of covenanting partners to bind successors
  3. the promise touches and concerns the land
  4. successors must have notice
  5. dont need privity cause it runs with land = attached to the land not the estate
118
Q

Termination of and defenses

A
  1. Release = written release
  2. merger
  3. acquiescence
  4. unclean hands
  5. abandonment
  6. laches
  7. eminent domain
  8. estoppel
  9. relative harm
  10. prescription
  11. changed conditions
  12. constitutional restrictions

Law School (10 decks)

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