Property for final Flashcards
easements restatement
-entitled the owner of such interest to a limited used or enjoyment of the land in which the interest exists;
-entitles the owner to protection as against third persons from interference in such use or enjoyment
-is not subject to the will of the possessor of the land
-is not normal incident of the possession of nay land possessed by the owner of the interest; and,
-is capable of creation by conveyance
what does the servient do
land subject to the easement = the servient tenement or easement
what doe the dominant do
land benefited by the easement ( if any)
affirmative easement
holder has the right do things on the land that the holder could not otherwise do
negative easement
holder can prevent the possessor of the land burdened with the easement with the easement from performing certain acts upon the land that the possessor would otherwise be able to perform
old negative easements
courts have traditionally limited the kinds of negative easements that could be created. 4 traditionally recognized negative easements: (1) light (2) air (3) lateral support (4) the flow of an artifical stream
new negative easement
mostly recognize as “conservation easements” that limit land development for environmental purposes
appurtenant easement
easement that attached to an benefit a particular parcel of land [the dominant estate]
what types of issues fall under the scope of easements
(1) length, width, and location
(2) authorized uses
(3) anticipated frequency & intensity of uses
(4) whether the easement can be relocated
(5) maintenance & repairs & obligations of the parties
(6) whether the easement holder can use the easement to benefit property other than the original dominant easement
(7) owner’s use of the easement
(8) is the easement granted/ served
(9) consideration
(10) prior use of the land burdened by the use of the easement
(11) the conduct of the parties
unilaterally relocating easement [majority]
prohibits the owner of either the dominant/ servient estate from unilaterally relocating the easement when the location is fixed
increase of the use of an easement
(1) change of use must be one of intensity rather than type of use
(2) normal increase ins considered contemplated unless the language of the contract states this
(3) increased use must be from the development from the dominant estate. it is permitted as long as it is reasonable
unilaterally relocating easements [min]
allows the servient owner so long as the locations allow the dominant owner similar benefits as its original location
can the easement holder use the easement to serve property that was not part of the original dominant estate
an owner of a dominant appurtenant easement cannot use/permit the use to serve land that was not part of the dominant estate when the easement was created
duty to repair/ maintain the easement
the dominant holder [generally] unless there is express language to contrary
what is appurtenant easement - transfer of dominant estate
any transfer of easement automatically transfers unless there is a contrasting agreement
-an appurtenant easement runs with the land
transfer of servient estate
any transfer of title, transfers the burden of the easement to the new owner; not binding if the transferee qualifies for protection against tan expressed easement of a bona fide purchaser who does not have notice
in most jurisdictions, a successor to a servient easements who is not a bina fide purchaser
what are the types of notice
(1) actual - was told by seller or someone else
(2) constructive (recorded) - known or should have known with a due diligent title search
(3) inquiry - “look and see for yourself”
are easements in gross transferable?
for commercial easements in gross there is a rebuttable presumption that the easement is assignable
old and modern view
what is the old view for transfering easements in gross
there is a arebuttable presumption that the easement is non-assignable
what is the majority view for transfering easements in gross
there is a rebuttable presumption that all easemenet are assignment
(1) unless there is a reason to believe that the parties intended for the easement ot be non-assignable (2)unless the parties could have reasonably expected that the benefit would pass
actions by the servient estate owner
the burden if an express express easement will not run if the successor in interest to servient estate is a bona fide purchase
how do you do termination by prescription
“adverse possession” of an easement holder’s rights
by the servient owner making adverse use of the easement for the period of time necessary to acquire an easement by prescription
how to do a termination of express easement
can terminate in accordance with the terms of creation or through subsequent events
by releasing it in formnal instrument that meet the requirements of creating an easement: (1) time limitation - easement may be limited in duration by the grant; (2) loss of purpose of easement - there is no reason to burden the servient estate when the intended benefit to the dominant estate no longer exists
abandonment
(1) must engage in unequivocal conduct manifesting an intent to abandon (2) non-use alone, no matter how long continued, is seldom sufficient ot extinguish an easement
improper use
(1) usually not enough to extinguish, but servient owner can get in an injuction; (2) however, court will extinguish of the alternative is to permit misuse or no use at all
describe merger
(1)when both the servient estate and dominant estate come to be owned by the same person, the lesser rights of the easement are merge into the greater wonership rights; and the easement is therefore terminated
(2) easement could also be suspended if owner of the easement is given a life estate [or a term of years] in the servient estate [the easement would reappear at the conclusion of the life estate]
(3)other method of termination, eminent domain, mortgage foreclosure and tax sales [3rd party actions]
describe estoppel
(1) a reliance on the conduct of the dominant owner that they relied on (2) detrimental reliance of action of the dominant owner
describe easements
note to confuse with extinguishing an eaement holder’s rights to use the easement by prescription. an easement can be extinguished through adverse use by the owner of the servient estate
- so if the servient owner sufficiently intercedes with the dominant holders right to access the easement [ and satisfies all the elemtns of the adverse possession in the process] the servient owner can extinguish the easement holder’s right
what are the 5 requirements for the burden to run [real covenant]
(1) the original parties must have inted to bind their successors
(2) the burden of the covenant must “touch and concern” the land
(3) horizontal privity
(4) vertical privity
(5) the sucessor must have notice of the covenant
describe intent to bind the successors
(1) the intent of the original contracting parties a tthe itme they entered into the covenant
(2) the original contracting parties intented
describe the burden of the covenant “touching and concerning” the land
(1) the covenant must relate to the direct use or enjoyment of the land
(2) a covenant that has some economic impact ont he partues ownership rights either enhacning or decreasing the values of the land satisfies the element
(3) in contract, a covenant that requits and ac having no connectio whatsoever to the particular parcel of land
(4) negative covenants/servitudes: these are cocenants not to do a physical action
(5) restrictive covenant can also enhance the value of the benefitted land. even though they may not effect the benefitted owner in the physical use of her land
(6) covenants containing building restrictions have always been held to touch and concern
(7) covenants “not to compete”: the burdened property - a covenant “not to compete” restricts the promisor in the physical use he mau make off his land
