Real Property Flashcards
Types of Implied Easements
(1) easement by necessity
(2) easement by prior use/implication
(3) easement by prescription
(4) easement by estoppel
Note: these are informal & no need for writing
not subject to recording statutes unless subsequent purchaser had notice of easement
Express Easement Requirements
(1) in writing;
(2) created by grant or reservation
subject to recorded statutes
Easement Appurtenant vs. Easement in Gross
Appurtenant: runs with land
In Gross: benefits holder personally (ex. easement for X to use Y’s pool)
Easement by Prior Use/Implication
created by an existing use on property
Easement by Prescription
concerns the use of the property
open & notorious
continuous for statutory period (consistent)
hostile (adverse to owner’s interest)
Easement by Estoppel
starts with permissive use, and then continues when person relies on easement, but then neighbor withdraws permission
Termination of Easements and Covenants
(1) merger of properties
(2) abandonment
(3) express release in writing
(4) end of necessity
Easement Definition
Right held by one person to make use of another’s land
servient estate: burdened property
dominant estate: property that receives benefit
Covenant
A promise concerning the use of the land that runs with the land/binds the successor
remedy is damages
Requirements for Covenant to Run
(1) A writing,
(2) intent to run with the land,
(3) touch and concern (benefit or burden must affect both parties),
(4) notice (actual or constructive), and
(5) horizontal and vertical privity.
Horizontal: covenant set out in conveyance between grantor and grantee (look for transfer of property)
Vertical: new owner holds same interest as original owner
Note: if no privity, it is probably an equitable servitude!
Equitable Servitude
A promise concerning the use of the land that runs with the land with less requirements than a covenant
To bind a successor:
(1) writing
(2) intended to run with land
(3) touch and concern the land
(4) must have actual, record, or inquiry notice
remedy is injunctive relief
Implied Reciprocal Servitude
an equitable servitude that is implied and not in writing
(1) Must intend to create covenant, (2) promises must benefit/burden everyone equally, (3) must be negative, (4) successor must be on any notice, and (5) must be a common plan or scheme.
ex. community restriction to only paint houses white
Terminates the same way as an easement
Nonconforming Use Definition
when zoning is changed and a structure doesn’t satisfy the new requirements
2 Types of Nonconforming Uses
(1) existing nonconforming properties
(2) post-ordinance non-conforming properties
Existing Non-Conforming Properties
the property owner’s goal is to get property grandfathered in (allow them to avoid changed laws)
a current nonconforming owner can transfer the nonconforming property to new owner
If a project is in the process when the change happens, the developer must have the property permits by the time the ordinance is in effect and must show the project was in good-faith
Post-Ordinance Nonconforming Properties
when property owner requests a change after zoning variance is in place
Owner applies for variance, asking permission to violate zoning rules
Owner must show ALL:
(1) compliance would cause undue hardship;
(2) hardship arises from unique circumstances
(3)owner didn’t create hardship
(4) variance is in keeping with overall purpose of ordinance; and
(5) variance will not cause substantial harm to general welfare.
Lateral Support Rights
neighboring landowner can’t excavate so as to cause a cave-in on adjacent owner’s land
if victim neighbor’s own buildings contributed to cave-in then standard is negligence
if victim neighbor’s buildings didn’t contribute to cave-in, then standard is strict liability
If an original mortgagee loans an additional amount to a mortgagor that is optional (not obligatory) may the amount enijoy a
If an original lender
