Property Outline PART 1 (Midterm) Flashcards
Dominant vs Servient estates
Dominant estate/tenement = the estate benefited by the easement
Servient estate/tenement = the estate burdened by the easement
Easement appurtenant vs easement in gross
Easement appurtenant: benefits the holder in her use of a specific parcel of land
Easement in gross: benefits the holder personally but not in reference to any land she owns = personal right attached to a
person
–There is no dominant estate, only a servient
estate
–Not transferrable, unless commercial easement in
gross
Affirmative easement vs negative easement
Affirmative easement = gives holder a right to do something on land that someone else owns or possesses
–Right of way
–Utilities
Negative easement = gives holder a right to prevent another owner/possessor from doing something on their own land
–Limited number and types: flow of air or light; support of building; flow of artificial stream
–Must be created expressly
–If not available, goal can usually be achieved by RC/ES
Created by grant vs created by reservation
- Created by grant: grantor is owner of servient land and “grants” another an easement over her land
- Created by reservation: grantor is owner of dominant estate and “reserves” or retains an easement for herself in the servient estate
License vs Easement
- License is a privilege re: use of land that can be created orally or in writing; generally is revocable at will
- An easement is an enforceable property interest
Easement vs “profit a prendre” or profit
Easement gives right to perform an act on the property, e.g. enter or cross
A profit gives right to enter property and to detach and take something away from it, e.g. timber or minerals
6 Main Ways to Create an Easement
1. Express By Implication 2. Implied from Subdivision Plats 3. Implied from Prior Use 4. Implied by Necessity 5. By Prescription (= servitude version of adverse possession) 6. Irrevocable license/Estoppel
also:
Implied dedication to public
Eminent domain
Regulatory taking
Express Easement (rules)
- Must comply with Statute of Frauds
- Be in writing
- Be signed by party to be bound
Alft v. Stewart (easements)
An easement is presumed to be appurtenant, as opposed to personal.
Scope of Express Easement (analysis steps)
- If issue directly addressed in grant: Apply strictly
- If issue not directly addressed in grant, look to: Reasonable intent of original parties; can admit extrinsic evidence to clarify
- If not clear, and change is increase in “same use”
- If “different use”:
i. If not reasonably foreseeable at time of grant, then
ii. per se violation, and irrelevant whether or not increase burden on servient estate
Types of Easements by Implication
Implied from Prior Use
Implied by Necessity
Implied from Subdivision Plats
Implied from Prior Use (elements)
- Prior common ownership before severance of title to land
- An existing, apparent, and continuous use at time of severance
- Reasonable necessity for the use at time of severance
Maj: reasonable necessity
Min: Reasonable necessity BUT strict necessity if reserved
Implied by Necessity
- Prior common ownership before severance of title to land
2. “Strict necessity” for the use at time of severance
Bob’s Ready to Wear, Inc. v. Weaver (easements)
A court finds an easement by implication if a commonly owned tract is severed, and the grantor intended that a particular use of one portion of the property for the benefit of another be continued despite the severance.
Melendez v. Hintz
For purposes of a prescriptive easement, an adverse use is one that constitutes some actual invasion or infringement of the owner’s rights.
Difference between Easement by prior use and necessity
Amount of necessity:
Prior use: Reasonable Necessity
Necessity: Strict Necessity
Prescriptive Easements (elements)
- Open and notorious use = visible or discoverable upon inspection or with knowledge of owner/possessor of servient estate
- Adverse use = use must be an actual invasion or infringement of right of owner/possessor, meaning without permission or consent of owner/possessor (i.e. trespass)
Need not be exclusive use to be adverse
General rule: presume adverse, so owner of servient estate has BOP to show use was permissive - Continuous use for the statutory period = regular use, but does not have to be constant
Successive claimants may “tack” as in possessory version of AP
Irrevocable License/Easement by Estoppel (elements)
- License (express or implied)
- Substantial reasonable reliance by licensee
- Knowledge (or reasonable expectation) of reliance by licensor/true owner
- Inequitable to revoke license now
Scope of Easements & Violations
Types of violations:
1. Change in use
A. Increased use of same kind
B. Different use
2. Maintenance and repair
3. Relocation
4. Use to benefit another parcel of land (Brown v. Voss)Heydon v. Mediaone
A commercial, exclusive, prescriptive easement in gross can be apportioned so long as the apportionment does not unreasonably increase the burden on the servient estate.
Understanding terms:
– Exclusive or nonexclusive
– Assignable (transferable)
– Apportionable (divisible)
Transfer of Easements (appurtenant)
“Attached to land” so automatically run with land to subsequent owners of both dominant and servient estates,
EVEN if not included in later deed!
BUT if
- express easement and
- subsequent owner qualifies for protection under the relevant Recording Act and
- subsequent owner has no notice (actual, record or inquiry), then this subsequent owner not subject to the easement
Transfer of Easements (gross)
Run with land on servient estate to subsequent owners
If non-commercial: owner cannot transfer
If commercial: owner can transfer
Termination of Easements
Written Conveyance or Release
Merger
Prescription: servient estate owner’s interference with use of easement
Abandonment (owner of the easement acts in an affirmative way that shows a clear intent to relinquish the easement)
Stated scope or condition in easement: e.g. “an easement for 10 years” or “so long as”
If created by necessity: terminate when necessity ends
If created by estoppel: terminate when licensee has recouped value of reliance investment
Condemnation of servient estate by government under Eminent Domain
Affirmative RC/ES vs negative RC/ES?
Affirmative: promise to perform a specific act on or related to own land
Negative: promise to not perform a specific act on own land
Negative Real Covenant vs negative easement?
Both are owner’s promise to not do something on own land that otherwise could legally do
Different requirements for creation
What if there’s both a Promissory Servitude and Zoning?
General rule: Zoning ordinances do not automatically override a private restrictive covenant.
If both are valid, the stricter of either the zoning ordinance or the covenant will prevail.
Real Covenant requirements:
- SoF
- Intent to run with the land (explicit or implied)
- Privity (Horizontal and Vertical)
- Touch and Concern
- Notice
(Express) Equitable servitude requirements
- SoF
- Intent to run with the land (explicit or implied)
- Notice
i. Actual
ii. Constructive
a. Constructive
b. Inquiry - Touch and Concern
(Implied) Equitable servitude requirements
- Initial common owner, common plan, and intent to apply to this parcel
- Intent to run with the land (implied)
- Notice
i. Actual
ii. Constructive
a. Constructive
b. Inquiry - Touch and Concern
SoF requirement (Servitudes)
MAJ: RC can only be created explicitly with writing
MIN: allows traditional exceptions to SOF (estoppel and part performance)
What is required?
- Writing
- Signed by the grantor/promisor (For transfer of property interest via a deed, grantee not required to sign. Her acceptance of the deed binds her to any RC in it)
- Identify the grantor/promisor and grantee/promisee
- Describe the property at issue
- Contain the subject/promise
- Usually in a deed, lease or other document used to convey a property interest
Intent to Run with the Land requirement
Explicit:
Traditional language: “I, owner of Blackacre, on behalf of myself, my heirs, successors and assigns promise…”
Implied:
Implied from nature of restriction, relationship of parties and other circumstances at the time of the creation of the covenant
(trying to infer the intent of the original covenantors)
Does Plaintiff need to prove HP? (RCs)
Majority rule: Plaintiff (person claiming benefit of RC) must prove HP if she is enforcing the burden of the RC on a successor in interest (the defendant)
Minority rule: Plaintiff never required to prove HP (3rd Restatement)
Two Alternative Tests for Meeting the HP Requirement
(1) Mutual interests test
(2) Successive Relationship Test
Mutual interests test (HP alternative test)
At the time when the provision was agreed to the originally covenanting parties both had some preexisting interest in the same property that was independent of the covenant
Both parties owned interest in the same property (ie. easement appurtenant or landlord-tenant relationship)
Successive Relationship Test (HP alternative test)
Original parties were in a successive (i.e. grantor-grantee) relationship regarding the covenant because the covenant was expressly included in conveyance with the parcel at issue
Successor had covenant in the deed
When is vertical privity required? (RCs)
Traditional rule/Majority rule:
Always if a subsequent owner involved
(a) If the plaintiff seeks to impose the burden of the agreement on a subsequent owner, vertical privity is required
(b) If the plaintiff is a subsequent owner and seeks to claim the benefit of the agreement, vertical privity is required. She must show that the benefit of the covenant runs to her
Minority rule:
The 3rd Restatement generally discards the traditional Vertical Privity requirements and replaces them with distinct rules for various kinds of interests. For our purposes, we’ll treat the Restatement as merely discarding the Vertical Privity Rules.
What kind of vertical privity is required?
(a) For the plaintiff to impose the burden, the successor landowner (defendant) must own the identical durational interest in land that the original covenanting party owned, (e.g. if she had a fee simple, she must have transferred a fee simple) = I call this “strong VP”
(b) For the plaintiff to claim the benefit: the plaintiff must own some interest in the land that the original covenanting party owned (e.g. OK if original covenantor had a fee simple and the plaintiff owns a life estate or leasehold estate in the same land) = I call this “weak VP”
Notice (RCs)
Notice of the RC is not a common law requirement to create a RC that runs with the land
BUT in many situations if the defendant did not have any kind of notice of the RC (e.g. actual, record or inquiry), then under the relevant recording act the defendant can raise lack of notice as a defense against enforcement of the RC against her
Final Bits on Privity to attack questions
- Analyze Does Benefit Run? and Does Burden Run? separately
- What needs to be proved about privity (i.e. HP, VP on one side of the transaction, or VP on both sides) depends upon who is suing whom
- If both Plaintiff and Defendant are subsequent owners consider “electric circuit” metaphor
Touch and Concern Rule and Test (RCs)
Rule: A covenant touches and concerns the property if it affects the owners in their legal relations as owners of the property so that enforcement of the covenant will benefit or burden the owners in their use and enjoyment of the property.
If the benefit is in gross, the burden won’t run.
Test:
If enforcement of the covenant would affect the value of the property in the market, the covenant touches and concerns the land.
Types of notice and how established (ESs)
Actual: Read, heard about or saw the agreement
Constructive:
Record: The fact was duly recorded in the public records so all members of the public are charged with knowing it, whether or not they ever actually checked the records.
Inquiry: Defendant knew one fact that would lead a reasonable person to perform an investigation.
A reasonable investigation would have revealed some other fact
Defendant is charged with knowing this other fact, whether or not they ever actually conducted any investigation.
Implied Negative Reciprocal ES Doctrine
Elements required to substitute for SOF:
- Initial Common Owner
- Common Plan for All of the Parcels
- Intent to Apply Plan to the Parcel at Issue
Two SOF and Notice problems that it solves:
Sloppy Developer: ES re “no commercial use” accidentally left out of deeds to B and F
Opportunistic Developer: ES re “no commercial use” intentionally left out of deeds to B and F to promote sales in down market
Arbitrary RCs/ESs
Presume reasonable and enforceable, but unenforceable if “unreasonable”:
Arbitrary
Violate fundamental public policy
Or Impose a burden on the use of affected land that far outweighs the benefit
Nahrstedt v Lakeside Village Condo Assn (cat case) vs Gabriel v. Cazier (swimming lessons)
Ways both RC and ES can be terminated:
Termination by nature of the RC or ES Express Agreement/Release- must be from all benefited owners Merger Prescription Abandonment Eminent Domain Changed Conditions Estoppel Laches Acquiescence Unclean Hands
Stages of a Land Transaction
- Offer to Purchase & Negotiations
- Land Sale Contract
- Executory Period
- Closing
- Post-Closing
- Post Move-In Issues
Actions Necessary for Broker to Earn a Commission
Majority: Does not require that brokers actions actually result in a sales contract. Does not require that deal closes.
Minority: Broker’s commission is not earned until sale closes (no closing = no commission)
However: if the seller breaches the sales contract and refuses to close, then seller must pay the broker the commission (liable due to interference with a contract for a prospective advantage)
If buyer breaches, then breaching buyer may have to pay the broker’s commission.
Backdrop: Broker must procure a “ready, willing and able” buyer – procure the sale
Listing Agreements
What is a listing agreement? = employment contract that authorizes payment of broker for services
Legal requirements for listing agreement:
1. Must be in writing
2. But could be implied if a broker is instrumental in achieving a sale
3. Must state the commission
Types of Listing Agreements
Open listing agreement?
–Seller can use another broker to sell
Exclusive agency contract?
- -Seller cannot use another broker (or must still pay commission if another broker is used)
- -But seller retains the right to sell by herself, in which case, no commission owed
- -Broker receives a commission no matter who sells the property
