Property 3 - Land Use

Question 1

Creation of Easement - Expressly

Answer 1

Express conveyance of an easement. Has to be in writing to satisfy the Statute of Frauds.

Question 2

Easement by Prescription

Answer 2

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.

Question 3

Easement by Conveyance (Easement Implied into a Conveyance)

Answer 3

1. There must have been common ownership of the dominant and servient estates and then a severance.
2. There must be a quasi-easement; the easement was in place and in use at the time of the severance.
3. It must be reasonably necessary that this easement continue.

Question 4

Easement by Necessity

Answer 4

1. Common ownership of the dominant and servient estates, and then a severance.
2. Strict or absolute necessity.

Question 5

Easement by Public Use

Answer 5

The public has been using the easement for the statutory period.

Question 6

Servient Estate

Answer 6

The parcel of land that is burdened by an easement.

Question 7

Dominant Estate

Answer 7

The parcel of land that is benefited by the easement.

Question 8

Easement Appurtenant

Answer 8

An easement that benefits a parcel of land.

Question 9

Easement in Gross

Answer 9

Easement that benefits an individual or an entity.

Question 10

Scope of an Easement

Answer 10

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.

Question 11

Surcharging the Easement

Answer 11

Using the easement beyond what is considered to be reasonable.

Question 12

Maintaining an Easement

Answer 12

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.

Question 13

Termination of Easement - Destruction of the Servient Estate

Answer 13

This generally terminates the easement unless the holder of the servient estate intentionally destroys it to get rid of the easement.

Question 14

Termination of Easement - Merger of Title to the Dominant and Servient Estates

Answer 14

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.

Question 15

Termination of Easement - Written Release

Answer 15

The holder of an easement can issue a written release giving up the rights to that easement.

Question 16

Termination of Easement - Abandonment

Answer 16

Requires: (1) abandoning the easement and (2) words or conduct indicating an intent to abandon.

Question 17

Termination of Easement - Estoppel

Answer 17

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.

Question 18

Termination of Easement - Severance

Answer 18

Applies to an easement appurtenant only. Any attempt to sever the easement from the dominant estate terminates the easement.

Question 19

Termination of Easement - Prescription

Answer 19

Servient estate owner interferes with the use of the easement continuously for the statutory period. (Like adverse possession.)

Question 20

Termination of Easement - Sale of Servient Estate to a BFP

Answer 20

When someone pays value for the property and takes it without notice of the easement, the easement is terminated.

Question 21

Termination of Easement - End of Necessity

Answer 21

Applies only to an easement created by necessity. If at any time after it is created, the necessity ends, then the easement automatically terminates.

Question 22

Profit

Answer 22

“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.

Question 23

License

Answer 23

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.

Question 24

License Coupled With an Interest

Answer 24

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.

Question 25

Executed License / Easement by Estoppel

Answer 25

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.

Question 26

Covenants that Run with the Land vs. Equitable Servitudes

Answer 26

Covenants lead to dollar damages while equitable servitudes lead to injunctions.

Question 27

4 Elements to a Covenant that Runs with the Land

Answer 27

1. Touch and Concern
2. Intent
3. Notice
4. Privity

Question 28

Covenants - Touch and Concern

Answer 28

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.

Question 29

Covenant - Affirmative Restriction

Answer 29

Where the covenant requires the servient estate to DO SOMETHING

Question 30

Covenants - Negative Restriction

Answer 30

Where the covenant requires the servient estate to not do something.

Question 31

Covenants - Intent

Answer 31

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.

Question 32

Covenants - Notice

Answer 32

Servient estate only. The current owner of the servient estate must take with notice (any of the 3 kinds) of the restriction.

Question 33

Covenants - Horizontal Privity

Answer 33

Requires privity of contract in connection with the land:

1. Grantor-grantee privity.
2. Landlord-tenant privity.
3. Mortgagor-mortgagee privity.

Question 34

Covenants - Vertical Privity

Answer 34

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.

Question 35

Equitable Servitude

Answer 35

3 requirements: 1. T&C 2. Intent 3. Notice. Those are all established in the same way they are in covenants.

Question 36

5 Ways to Terminate Covenant or Equitable Servitude

Answer 36

1. Merger.
2. Written release. (By the owner of the dominant estate.)
3. Abandonment coupled with words or conduct showing intent to abandon.
4. 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.
5. Changed circumstances so that the reason behind the restriction is no longer valid.

Question 37

Statute of Frauds

Answer 37

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.

Question 38

Zoning Ordinances

Answer 38

Not really a property issue. You can challenge them under due process, equal protection, or first amendment.

Question 39

Eminent Domain

Answer 39

The government may take a fee simple interest in property, an easement, or an interest in an estate in the property.

Question 40

Nuisance

Answer 40

Is an unreasonable interference with the use and enjoyment of land.

Question 41

Right to Lateral Support

Answer 41

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.

Question 42

Right to Subjacent Support

Answer 42

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.

Question 43

Water Rights

Answer 43

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.

Question 44

Crops/Emblements

Answer 44

1. If seller severs crops before delivering it to buyer – sell of goods governed by UCC.
2. If seller sells the crops still attached to land - sell of real property.

Question 45

3 Things of Easements

Answer 45

1. Creation
2. Scope
3. Termination