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Law EXTRA > REAL PROP - EASEMENTS > Flashcards

REAL PROP - EASEMENTS Flashcards

1
Q

what does an easement give the holder the right to do?

A
  • use another’s tract of land for a special purpose (e.g. to access a road)
  • but holder has no right to possess or enjoy the land
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2
Q

what is the presumed term of an easement?

A

it is presumed to be of perpetual duration unless grant specifically limits it.

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3
Q

What is easement appurtenant?

A
  • easement that benefits holder in his physical use or enjoyment of another tract of land.
  • there must be 2 tracts for easement appurtenant
    • dominant tenement (estate benefitted by easement)
    • servient tenement (estate subject to the easement)
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4
Q

when does easement appurtnenant trasnfer with the land?

A
  • easement appurtenant automatically transfers with the benefited land
    • does not have to be mentioned in the conveyance
  • easement appurtenant automatically transfers with burdened land
    • unless new owner is BFP with no notice (actual, constructive, inquiry) of the easement
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5
Q

can an easement appurtenant be conveyed apart from the dominant tenement?

A

No. Unless it is conveyed to the owner of the servient tenement to extinguish the easement.

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6
Q

what is easement in gross?

A

An easement that benefits the holder as opposed to another parcel.

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7
Q

Is an easement in gross transferable?

A

If easement in gross is for holder’s personal pleasure - not transferable.

if easement in gross serves economic or commercial interest - transferable.

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8
Q

How is an easement created?

A
  1. express grant
  2. express reservation
  3. implication
    1. easement implied from existing use
    2. easement implied without existing use
    3. easement by necessity
  4. prescription
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9
Q

how is easement created by express grant?

A
  • grant must be:
  1. memorialized in writing
  2. signed by holder of servient tenement (unless easement to be less than 1 yr and not in SoF)
  3. grant must comply with requirements of formal deed
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10
Q

When is an easement created by express reservation?

A
  • grantor conveys title to land but reserves right to continue using tract for a special purpose
  • easement can be reserved ONLY FOR GRANTOR
    • attempt to reserve easement for someone else = void
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11
Q

when is easement implied from existing use (i.e. implied by operation of law)?

A
  1. easement is implied from existing use if:
    1. prior to division of a single tract
    2. an apparent and continuous use exists on the servient part
    3. that is reasonably necessary for enjoyment of the dominant part; and
    4. parties intended the use to continue after division of the land
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12
Q

When is easement implied without prexisting use?

A
  1. subdivision rule
    1. when lots sold in subdivision
    2. with referense to recorded plat or map
    3. that shows streets leading to lots
    4. buyers have implied easement to use streets to access their lots
  2. profit a prendre
    1. when holder has right to take natural resources from the land
    2. they have implied easement to pass over the surface of the land
  3. easement by necessity
    1. when landowner sells a portion of his tract
    2. and the subdivision one lot of access to a public road or utility line
      1. owner of servient parcel has right to indicate where the easement will be located (e.g. choice between several roads)
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13
Q

when is easement acquired by prescription?

A
  • use is open and notorious (discoverable upon inspection)
  • adverse (without owner’s permission)
  • continuous and uninterrupted
  • for the statutory period
    • in common law and VA = 20 yrs
    • in VA if for water and sewer services = 10 yr
    • cant be acquired in public land
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14
Q

what is the scope of an easement?

A
  • absent specific indication in grant:
    • courts assume easement intended to meet present and future needs of dominant tenement
      • easement can widen to accomodate newer cars
      • cant overburden servient estate
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15
Q

What if there is overuse or misuse of an easement?

A
  • does not terminate the easement
  • remedy for servient owner = injunction against misuse
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16
Q

who has duty to make repairs on easement?

A
  • easement holder if he is sole user
  • if both parties using - court will apportion the costs
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17
Q

how can a easement be termination?

A
  • stated conditions
  • unity of ownership (merger)
  • release
  • abandonment
  • estoppel
  • prescription
  • necessity
  • condemnation and destruction
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18
Q

how is easement terminated by stated conditions

A
  • easement grant may specify under what conditions easement will terminate
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19
Q

how is easement terminated by unity of ownership (merger)

A
  • if same person acquires ownership of both easement and servient estate
    • easement is destroyed
    • even though there may be later separation
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20
Q

how is easement terminated by release?

A
  • deed of release from owner of easement to owner of servient tenement
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21
Q

how is easement terminated by anandonment?

A
  • easement holder shows intent to permanently abandon
  • PLUS some physical action (e.g. building structure that blocks access to easement)
    • mere nonuse can not show abandonment
    • mere words cannot show abandonment
    • BUT words + long term nonuse may
22
Q

how is easement terminated by estoppel?

A
  • when owner of servient esate changes his position in reasonable reliance on representations of easement owner showing intent to terminate
23
Q

how does easement terminate by prescription?

A
  • adverse
  • continuous
  • interruption of use of the easement
  • for the prescriptive period
    • 20 years at common law and VA
24
Q

how is easement terminated by necessity

A
  • the necessity that created the easement ends
25
Q

how is easement terminated by condemnation?

A

condemnation of servient estate extinguishes all easements

26
Q

how is easement terminated by destruction?

A
  • involuntary destruction terminates easement
  • voluntary destruction does not
27
Q

what is a license?

A
  • allows holder to go upon land of another
    • this is not an interest in land (unlike easement)
  • revocable at will of licensor
  • not transferable
  • failed attempt to create easement is a license
    • e.g. if grantor orally grants easement of more than 1 year = license
    • UNLESS there is equitable easement
28
Q

what is equitable easement (this is in VA not at common law)

A
  • owner of servient estate grants oral easement of more than 1 year
    • this is actually a license bc not enforceable under SoF
    • BUT in VA
      • if holder of dominant estate changes posn in reasonable reliance on the oral license
      • = equitable easement
29
Q

when will a license become irrevocable?

A
  1. estoppel
  2. license coupled with interest
30
Q

what is a irrevocable license by estoppel?

A
  • licensee invests substantion amounts money/labor in reliance on license
    • license becomes easement by estoppel
    • lasts until holder receives enough benefit to reimburse him
31
Q

when does license couple with interest create irrevocable license?

A
  • when there is license coupled with interest
  • lasts for as long as interest lasts
32
Q

what is a profit?

A
  • allow holder to take resources from servient estate
  • examples:
    • soil, timber, materials, fish
    • includes implied easement entitling holder to enter servient estate to remove resources
33
Q

how is a profit created and terminated?

A
  • same ways easement is
    • ALSO may be terminated through surcharge
      • i.e. misuse that overly burdens the servient estate
34
Q

what is a real covenant

A
  • written promise to do or not do something on the land
  • real covenants run with the land as long as requirements met
35
Q

what are the requirements for the burden of a real covenant to run with the land

A
  • 1) intent
    • parties intended that successors would be bound by covenant
  • 2) notice
    • subsequent purchaser for value must have actual, inquiry, or record notice of covenant
    • this protects ONLY purchasors for value
  • 3) horizontal privity
    • at time ORIGINAL PARTIES entered covenant - must have been a special relationship between them, e.g,
      • grantor-grantee, landlord-tenant, mortgagor, mortgagee
  • 4) vertical privity
    • successor must hold entire interest held by covenantor at time covenant made
  • 5) touches and concerns the land
    • for negative covenant
      • must restricts holder of servient estate in use of land
    • for affirmative covenant
      • must requires holder of servient estate to do something with respect to the land
36
Q

what are the requirements for the benefit of a real covenant to run with the land?

A
  • Intent
    • ORIGINAL parties must have intended for successors to be able to enforce covenant
  • Vertical Privity
    • benefit runs to any succeeding estate (whether same size or smaller than original estate)
  • Touches and concerns the land
    • i.e. promised performance benefits covenantee in her use and enjoyment of the land
37
Q

Specific real covenants that run with the land

A
  • promises to pay money used in connection with the land (home owner associtation fees)
  • covenants not to compete (BUT not in VA)
  • racially restrictive covenants DONT RUN
38
Q

what is remedy for breach of a real covenant

A
  • money damages
  • (if injunction sought - apply equitable servitude rules)
39
Q

how is a real covenant terminated?

A
  1. written release
  2. merger of benefitted and burdened estates
  3. condemnation of burdened estate
40
Q

what is an equitable servitude

A
  • like a real covenant (promise to do or not do something)
    • but instead of seeking money damages
    • an injunction is sought
41
Q

how is equitable servitude created?

A
  • memorialized in a writing that satisfies SoF
    • EXCEPTION:
      • negative equitable servitudes can be implied by common scheme
        • if developer subdivided land
        • and some deeds include negative covenants and some dont
        • negative easements binding on all parcels if common scheme + notice of covenants
42
Q

what is a common scheme under equitable servitude analysis?

A
  • at time sales in subdivision BEGAN - developer had plan that all plots be subject to restriction
    • may be evidence by
      • recorded plat
      • general pattern of restrictions
      • oral representations to early buyers
        • if lot 1-5 sold w/out restricitve covenant
        • and 6-30 sold w/
        • can only be enforced against 6-30
43
Q

what is notice requirement for purposes of equitable servitude?

A
  • grantee must have had actual, inquiry (neighborhood appears to conform), or record notice (prior deed in chain with covenant) of covenants in deeds of others in subdivision
44
Q

what are the requirements for the burden of an equitable easement to run with the land?

A
  • convenanting parties INTENDED that servitude be enforceable by and against assignees
  • successor has NOTICE of the servitude (actual, inquiry, record)
  • covenant touches and concerns the land
    • restricts holder of servient estate in his use of the land
45
Q

what are the requirements for a benefit of an equitable servitude to run with the land?

A
  • original parties so INTENDED
  • servitude touches and concerns the land
    • benefits owner of dominant parcel in her use and enjoyment of the land
46
Q

what is the difference between the requirements for running with the land between real covenants and equitable servitudes?

A

no privity required for equitable servitudes to run

47
Q

what are the equitable defenses to enforcement of an equitable servitude?

A
  • court will not enforce if:
    • 1) UNCLEAN HANDS: person seeking enforcement violating similar restriction on his own land
    • 2) ACQUIESCENSE: benefited party acquiesced in the violation
    • 3) ESTOPPEL: benefited party acted in way that would make reasonable person believe covenant abandoned or waived
    • 4) LACHES: benefited party fails to bring suit within reasonable time; or
    • NEIGHBORHOOD CHANGE: neighborhood changed so much that enforcement would be inequitable
48
Q

how is an equitable servitude terminated?

A
  1. written release
  2. merger of benefited and burdened estates
  3. condemnation of burdened propery
49
Q

how will courts treat a common wall or driveway on property of two adjoining landowners?

A
  • as belonging to each owner to extent it rests on their land
  • court implies cross-easements of support
    • i.e. each party can use wall or driveway
    • neither can unilaterally destroy it
50
Q

How is a party wall or common driveway created?

A
  • written agreement that satisfies SoF
  • irrevocable license due to detrimental reliance on oral agreement
  • by implication
  • prescription
51
Q

will a party wall or common driveway run with the land

A
  • yes - if original owners agree to be mutually responible for maintaining it
52
Q
A

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