Property Flashcards
Challenging Subtopics
What is required to acquire a prescriptive easement?
The use must be:
* Open and notorious
* Adverse
* Continuous and uninterrupted for the statutory period
Exclusive use is not required; the user may share the use with the owner or other easement claimants.
What happens when the owner of an easement uses it beyond its legal scope?
The easement is said to be surcharged.
The servient landowner can seek an injunction against the excess use and possibly damages if harmed.
What is the remedy for a servient landowner when an easement is surcharged?
An injunction of the excess use and possibly damages if the servient land has been harmed.
The excess use does not terminate the easement.
How are profits terminated?
Profits are terminated in the same way as easements.
Misuse of a profit that unduly increases the burden will result in extinguishing the profit.
What is the consequence of misusing an affirmative easement?
Improper or excessive use increasing the burden on the servient estate is enjoyable but typically does not extinguish the easement.
This contrasts with the result when the burden is unduly increased in the case of profits.
Fill in the blank: The use of an easement must be _______ and notorious.
Open
True or False: Exclusive use is required to acquire a prescriptive easement.
False
What must a subsequent purchaser have for the burden of an equitable servitude to run to them?
Notice of the covenant
Notice can be actual, inquiry, or record notice.
Define an equitable servitude.
A covenant that can be enforced in equity against successors of the burdened land unless the successor is a bona fide purchaser.
List the three conditions for the burden of an equitable servitude to run to a subsequent purchaser.
- The covenanting parties intended that successors in interest be bound by the covenant
- The purchaser has notice of the covenant
- The covenant touches and concerns the land
What is horizontal privity?
The original parties to a real covenant shared some interest in the land independent of the covenant.
Is horizontal privity required to enforce the burden of an equitable servitude?
No.
What is required for a written equitable servitude to be enforceable?
- A covenant in a writing satisfying the Statute of Frauds
- The covenant touches and concerns the land
- Indicates intention that the servitude exists
- Notice is given to future owners
True or False: A common scheme for development is required for the burden of a written equitable servitude to run to a subsequent purchaser.
False.
What is a common scheme exception in relation to equitable servitudes?
Reciprocal negative servitudes may be implied absent a writing if there is a common scheme for the development of a subdivision.
What two requirements must be satisfied for reciprocal negative servitudes to be implied?
- A common scheme for development
- Notice of the covenants
What types of notice can satisfy the requirement for reciprocal negative servitudes?
- Actual notice
- Record notice
- Inquiry notice
What is the doctrine of reciprocal negative servitudes?
Negative covenants or equitable servitudes binding all the parcels in the subdivision may be implied.
Courts will allow prior purchasers to enforce restrictions against subsequent purchasers even without what?
A covenant in the deeds that all subsequent parcels would be subject to the restriction.
What theory do courts use to allow prior purchasers to enforce restrictions against subsequent purchasers?
An implied reciprocal servitude attached to the common grantor’s retained land.
What is required for the benefit of an equitable servitude to run to successors?
- The original parties intended it
- The servitude touches and concerns the land
What is privity of estate in relation to equitable servitudes?
Not needed to enforce an equitable servitude.
Fill in the blank: The burden of an equitable servitude runs if the original parties intended it, the servitude touches and concerns the land, and the subsequent purchaser has _______.
Actual or constructive notice of the covenant.
How does the fencing covenant benefit the barber’s property?
By providing bicycle paths and walkways for the use of all subdivision residents.
