Property Midterm Flashcards
what are the issues about scope
interpretation and extent
(1) the length width and location of the easement; (2) the tupes of usues authorized by the easement; (3) the anticipated frequency and intensity of uses of the easement; (4) whether the easement can be relocated by one of the parties; (5) whether the easement holder can use the easement to benefit property other than the original dominant estate; (6) the maintenance and repaire rights and obligations of the parties; (7) other’s use of the easement, including use by the servient estate owner
what is the primary goal of the interpretation and extent of evaluating easements
interpretation and extent
to effectuate the parties’ intent with respect to the purpose or uses for which the easement was created
what are the two factors for easement language
interpretation and extent
(1) language of the granting instrument is examined first; (2) if the language is clear and unambiguous, it is given affect
what is the restatement (third) of property (servitudes)
interpretation and extent
“unless it can be shown that the parties intended otherwise, ‘the holder of an easement or profit is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude”
what are the factors for evaluating easement language
interpretation and extent
(1) whether the easement is granted or reserved; (2)the amount of the consideration, if any, that th eoriginal beneficiary of th eeasement gave for th easement; (3) the prior use of the land on which the easement is now located; (4) subsequent conduct of the parties
what is the majority rule for changing the location of easements
interpretation and extent
once the location of an easement is fixed, it cannot be moved without the consent of the owners of both the servient and dominant estates
what is the minority rule for changing the location of easements
interpretation and extent
the servient estate is permitted to relocate an easement, provided that the relocated easement affords the dominant estate benefits that are similar to those that the dominant enjoyed under the original easement
restatement (third) of property (servitudes) recognizes the minority status, they chose to adapt it
what happens when the easement owner differs or exceeds the authorized purpose of the easement?
interpretation and extent
considered a trespass and is not allowed
what may happen to the servient when new conditions arrive
interpretation and extent
the servient estate owner may resist these new uses as being excessively burdensome or beynod what they agreed as an allowed use of their property
when do tensions arise for new conditions on easements
interpretation and extent
(1) adhering strictly to the parties’ original easement language on the assumption that new uses can be added by mutual modification of the easement; (2) assuming that the parties intended the easement’s uses to reasonably evolve as conditions change, thus allowing benefitical uses similar in type and overal burden on the servient estate
what is the restatement (third) of property (servitudes)
interpretation and extent
“where the easement is appurtenant, this creased use must be the result of a normal development o fth edominant estate”
what is the standard rule for non-dominant land
interpretation and extent
owner of appurtenant easement cannot use the easement, nor permit its use, for the service of land which was not part of the dominant estate at the time the easement was created
would be considered a trespass
what did Heartz v. City of Concord hold
interpretation and extent
allowed use of an easement for non-dominant land owned by the easement holder prior to the creation of the easement
what did Grygiel v. Monches Fish and Game Club hold
interpretation and extent
held that there was no mis-use of an easement by third parties to cross the servient estate to get to the dominant estate in order to access a third (non-dominant) parcel for hunting
who has to duty to make rempaires on easements
interpretation and extent
the easement owner is asusmed to have a duty to make those repairs necessary so as to not interefere with the servient owner’s use and enjoyment of his property
walker v. boozer
what did Lazy Dog Ranch v. Tellurary Ranch Corp hold
interpretation and extent
the easement owner has the irght to make such repairs and improvements as are required to accomplish the purpose of the easement, as long as she does nto unreasonably increate the burden on the servient estate
what did Walker v. Boozer hold
interpretation and extent
the servient estate owner has a duty to refrain from interfering with the easement owner’s enjoyment of her rights
what did Miller v. Boozer hold
interpretation and extent
the servient owner can use his property in whatever manner he chooses, so long as he does not hinder the use and enjoyment of the easement
what is the presumption that the parties intended in easements
easement succession
appurtenant
if an appurtenant easement does not specify, does the court assume the easement can be transferable
easement succession
yes, the court assumes the easement to be transferred with the dominant estate
what did Burky v. Knowles hold
easement succession
the benefit of the easement runs with the land unless the terms of the transfer or the terms of the creaetion of the easement precludes the benefit from running
what happens if the successor to the servient estate purchases the servient estate without notice of the easement
under modern recording statutes, the easement will be extinguished and the new owner of the servient estate will not be subject to the burden of the easement
under the restatement third of property servitudes
the easement must be signed, otherwise the court will make a presumption that the benefit of an aeasement in gross is assignable, unless it is found to be personal
crane v. crane
the older view, if the primary purpose of the asement is to gain economic benefit, the easement is deemed commercial in nature and there arises a rebuttable presumption that it is assignable
tiller v. hinton
if the original parties intended the burden to run, an the successor to the servient estate has notice of the easement, the burden of the easement will pass with teh servient estate so as to be binding on the successor to the servient estate
express terms and impossibility
if an easement was created for a specific period of time or to serve a particular purpose, it terminated upon the expiration of this period of when the purpose has been accomplished or can no longer be accomplished
release and abandonment
an owner may be terminated his easement by releasing it in a formal written instrument that meets the requirements necessary to create an easement / less formamly, the easement holder can terminate his rights by abandoning the easement
third restatement of property
misuse and overuse
generally, misuse or overuse of an easement is not sufficient to extinguish it, although the servient owned can get an injunction to enjoin such ecessive use
lack of notice
if the easement owner has not recorded his easement, the purchaser does not have actual knowledge of the easement and if an inspection of the premises does not give notice of its existence then the servient owner can terminate the easement rights by selling his property to a bona fide purchaser without notice
prescription
the servient owner can also extinguish an easement by making adverse use of the burden parcel for the same period of time necessary to acquire an easement by prescription / burden to establish is high
merger
conduct of both the easement owner and the owner of the servient estate together will work to extinguish an easement
estoppel
requires actions on part of both parties to an easement; easement owner engages in conduct inconsistent with the continuance of the easement
if the servient owner would suffer unreasonable harm by restortation of the easement rights, the easement owner is estopped from asserting these rights and easement is extinguished
third party actions
actions by third parties can extinguish easements through such devices as eminent domain, mortgage, foreclosure, and tax sales
what three elements are usually required for an implied easement by prior use
severance of land (title); an existing, apparent and continuous use of one parcel; and reasonable necessity
severance of land title
land had been held in common ownership into 2 or more parcels wuth seperate ownership
reasonable necessitiy
continuation of the use is reasonably necessary for the enjoyment of the benefitted party
non-express easements can be created through:
prior use, necessity, prescription, implication from a map or boundary description
prescriptive easements
created through actual use, open and notorious, histile, and continuous
easements can be extinguished by what
prescription/adverse possession
the scope of a non-express easement
courts will permit additional uses of an implied easement that arise from foreseebale changes to the dominate estate as long as there is no unreasonable additional burden on the servient estate
implied easements can only be what
appurtenant; ar epresumed to pas with the dominate estate unless the language of trasnfer or surrounding circumstances regarding its creation suggest otherwise
what are the two justifications for ercognizing an easement by necessity
(1) the implied intent of the parties (2) the public policy favoring the productive use of land
non-express easements/ what will happen one necessity disappears
rights necessary to enjoy the property are included in the easement by necessity, although these rights will terminate once the necessity disappears
covenant
affirmative covenant: a promise to perform a particular act
equitable servitude
negative covenant or restrictive covenant: a promise not to perform a particular act; remedy is injunction not $
real covenant
a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and also their successors and (2) is enforceable in an action for damages $
what is the modern trent for real covenants and equitable servitudes
restatement third of property servitudes; the distinctions between “real covenants” and “equitable servitudes” have been merged as simply “covenants” or
covenants” running with the land
creation of a real covenant
the law distinguishes between the original parties to teh covenant and their successors; each real covenant ahs two “sides” the burden and the benefit
intent of the parties (real covenant)
-the intent that is critical when analyzing whether a covenant ‘runs with the land’ is the intent of the original contracting parties at the time they entered into the covenant
-when a promisee attempts to enforce a covenant against a successor of the promisor, the promisee must show that the original contracting parties intended the promise to run with the burdened land
touch and concern
the covenant must relate to the direct use or enjoyment of the land
-economic impact on owners rights satisfies the element
touch and concern negative servitudes
not to do a physical act still burdens owner in the physical use of her land; restrictive covenant can also enhance the value fo the benfitted land. remember, covenants containing building restrictions have always been held to touch and concern
covenants “not to compete”
the burdened property - restricts the promisor in the physical use he may make of his land. the benefited property - enhances the value of the covenantee’s commercial value
horizontal privity real covenant
-traditionally requries that the original parties have a special relationship in order for the buden to run
-exists between the promisor and the promisee who have mutal interests
-concerns only the original parties
-only requried for the burden to run
vertical privity real covenant
-concerns relationship between an original party and its successors
-privity exists only if the successor succeeds to teh entire estate in land held by the original party
-referred to as strict vertical privity and it is requried for the burden to run with the land
notice (real covenant)
-notice established through recording of the original instrument
-also satisfied by actual knowledge of a coveant
requirement for the benfit to run (real covenant)
- the original parties intend to benefit their successors
- the benefit of the covenant must touch and concern the land
- veticle privity must exist
3 elements for equitable servitude to bind the promisor’s successors
- the original parties must intend to burden successors
- the promise must touch and concern the land
- the successor must have notice of the promise
common plan or scheme
if a developer manifests a common plan or common scheme to impose unifirm restrictions on a subdivision, most courts will conclude that an equitable servitude will be implied; viewed as implied promise; both burdened and benfited
how do determine if the covenant runs with the land
look to see who is seeking to enforce the covenant and whether the party seeking to enforce a covenant is seeking to enforce the covenant against an original party to the covenant or a successor
