Property 3 - Land Use Flashcards
Creation of Easement - Expressly
Express conveyance of an easement. Has to be in writing to satisfy the Statute of Frauds.
Easement by Prescription
Adverse possession of the easement world. Physical element has to be actual, open, and notorious use of the property. Then with a hostile intent continuously for the statutory period.
Easement by Conveyance (Easement Implied into a Conveyance)
- There must have been common ownership of the dominant and servient estates and then a severance.
- There must be a quasi-easement; the easement was in place and in use at the time of the severance.
- It must be reasonably necessary that this easement continue.
Easement by Necessity
- Common ownership of the dominant and servient estates, and then a severance.
- Strict or absolute necessity.
Easement by Public Use
The public has been using the easement for the statutory period.
Servient Estate
The parcel of land that is burdened by an easement.
Dominant Estate
The parcel of land that is benefited by the easement.
Easement Appurtenant
An easement that benefits a parcel of land.
Easement in Gross
Easement that benefits an individual or an entity.
Scope of an Easement
What the holder of an easement can do with it. If the easement was created expressly and the document creating it details a specific use, then that is the only use to which an easement can be put. Absent that situation, a holder of an easement is allowed to make reasonable use of the easement under the circumstances.
Surcharging the Easement
Using the easement beyond what is considered to be reasonable.
Maintaining an Easement
The holder of the easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner’s use of his property.
Termination of Easement - Destruction of the Servient Estate
This generally terminates the easement unless the holder of the servient estate intentionally destroys it to get rid of the easement.
Termination of Easement - Merger of Title to the Dominant and Servient Estates
If at any time the same person acquires ownership of both, the titles merge and the easement is destroyed. If the owner then sells the servient estate, the easement is not automatically recreated.
Termination of Easement - Written Release
The holder of an easement can issue a written release giving up the rights to that easement.
Termination of Easement - Abandonment
Requires: (1) abandoning the easement and (2) words or conduct indicating an intent to abandon.
Termination of Easement - Estoppel
A situation where the easement holder engages in conduct which leads the owner of the servient estate to believe the easement has been abandoned, and the servient estate holder detrimentally relies on that.
Termination of Easement - Severance
Applies to an easement appurtenant only. Any attempt to sever the easement from the dominant estate terminates the easement.
Termination of Easement - Prescription
Servient estate owner interferes with the use of the easement continuously for the statutory period. (Like adverse possession.)
Termination of Easement - Sale of Servient Estate to a BFP
When someone pays value for the property and takes it without notice of the easement, the easement is terminated.
Termination of Easement - End of Necessity
Applies only to an easement created by necessity. If at any time after it is created, the necessity ends, then the easement automatically terminates.
Profit
“Super easement.” The right to go on someone else’s land and take something off of it. Can only be created expressly or by prescription.
License
A privilege to go onto another’s land. It’s not an interest in the land, it’s a personal property right. Can be oral. Freely revocable at any time.
License Coupled With an Interest
if a person acquires personal property on the land and then is given permission to go on the land to get the personal property, that license can’t be revoked.
Executed License / Easement by Estoppel
When someone is given permission to use another’s land, and they expend money in reliance on that permission. The license is irrevocable until they have gotten the value of that expenditure out of the license. How long that is is a question of fact.
Covenants that Run with the Land vs. Equitable Servitudes
Covenants lead to dollar damages while equitable servitudes lead to injunctions.
4 Elements to a Covenant that Runs with the Land
- Touch and Concern
- Intent
- Notice
- Privity
Covenants - Touch and Concern
Servient estate - for T&C the covenant has to reduce the enjoyment of the land.
Dominant estate - for T&C the covenant has to increase the use and enjoyment of the land.
Covenant - Affirmative Restriction
Where the covenant requires the servient estate to DO SOMETHING
Covenants - Negative Restriction
Where the covenant requires the servient estate to not do something.
Covenants - Intent
It must be intended that this restriction run with the land to future owners. In a majority of jrdx, if T&C is established, the element of intent is presumed.
Covenants - Notice
Servient estate only. The current owner of the servient estate must take with notice (any of the 3 kinds) of the restriction.
Covenants - Horizontal Privity
Requires privity of contract in connection with the land:
- Grantor-grantee privity.
- Landlord-tenant privity.
- Mortgagor-mortgagee privity.
Covenants - Vertical Privity
Privity of estate. On the SERVIENT SIDE, the grantor must be transferring ALL of his or her ownership interest to the grantee. Doesn’t matter if it’s all interests on dominant side.
Equitable Servitude
3 requirements: 1. T&C 2. Intent 3. Notice. Those are all established in the same way they are in covenants.
5 Ways to Terminate Covenant or Equitable Servitude
- Merger.
- Written release. (By the owner of the dominant estate.)
- Abandonment coupled with words or conduct showing intent to abandon.
- Estoppel. If the D estate does something that leads the owner of the S estate to believe the restriction will no longer be enforced and the S
estate detrimentally relies on that. - Changed circumstances so that the reason behind the restriction is no longer valid.
Statute of Frauds
Applies to both covenants and equitable servitudes. EXCEPTION: Can be oral when it is the implied reciprocal servitude. Works with negative restrictions only and requires (1) must be shown that the intended restriction is part of a common scheme or plan for development of the area; (2) the current owner of the servient estate must take with notice of the restriction.
Zoning Ordinances
Not really a property issue. You can challenge them under due process, equal protection, or first amendment.
Eminent Domain
The government may take a fee simple interest in property, an easement, or an interest in an estate in the property.
Nuisance
Is an unreasonable interference with the use and enjoyment of land.
Right to Lateral Support
An absolute right. If neighbor deprives you of the support, they’re strictly liable. However, if you’ve improved your land you have to ask whether the subsiding of your land would have occurred with or without the improvement. If it would have occurred even without the improvement: still strict liability. If the weight of the improvement caused the land to subside, the digger is liable only if they were negligent in taking away the support.
Right to Subjacent Support
Absolute right. Digger is strictly liable for damage to your land and any damage to improvements that existed at the time the sub-surface rights were granted. For any improvements added after sub-surface rights were granted, digger is only liable if he was negligent.
Water Rights
Riparian (Majority) - anyone with land that touches the water has a right to make reasonable use of the water. Prior Appropriation (Minority) - First in time first in right.
Crops/Emblements
- If seller severs crops before delivering it to buyer – sell of goods governed by UCC.
- If seller sells the crops still attached to land - sell of real property.
3 Things of Easements
- Creation
- Scope
- Termination
