Real Property

Question 1

Types of Implied Easements

Answer 1

(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

Question 2

Express Easement Requirements

Answer 2

(1) in writing;
(2) created by grant or reservation

subject to recorded statutes

Question 3

Easement Appurtenant vs. Easement in Gross

Answer 3

Appurtenant: runs with land

In Gross: benefits holder personally (ex. easement for X to use Y’s pool)

Question 4

Easement by Prior Use/Implication

Answer 4

created by an existing use on property

Question 5

Easement by Prescription

Answer 5

concerns the use of the property

open & notorious
continuous for statutory period (consistent)
hostile (adverse to owner’s interest)

Question 6

Easement by Estoppel

Answer 6

starts with permissive use, and then continues when person relies on easement, but then neighbor withdraws permission

Question 7

Termination of Easements and Covenants

Answer 7

(1) merger of properties
(2) abandonment
(3) express release in writing
(4) end of necessity

Question 8

Easement Definition

Answer 8

Right held by one person to make use of another’s land

servient estate: burdened property
dominant estate: property that receives benefit

Question 9

Covenant

Answer 9

A promise concerning the use of the land that runs with the land/binds the successor

remedy is damages

Question 10

Requirements for Covenant to Run

Answer 10

(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!

Question 11

Equitable Servitude

Answer 11

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

Question 12

Implied Reciprocal Servitude

Answer 12

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

Question 13

Nonconforming Use Definition

Answer 13

when zoning is changed and a structure doesn’t satisfy the new requirements

Question 14

2 Types of Nonconforming Uses

Answer 14

(1) existing nonconforming properties
(2) post-ordinance non-conforming properties

Question 15

Existing Non-Conforming Properties

Answer 15

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

Question 16

Post-Ordinance Nonconforming Properties

Answer 16

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.

Question 17

Lateral Support Rights

Answer 17

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

Question 18

If an original mortgagee loans an additional amount to a mortgagor that is optional (not obligatory) may the amount enijoy a

Answer 18

If an original lender