Real Property 31-45 Flashcards
What must be present to enforce the benefit of an Equitable Servitude?
There must be:
A writing that satisfies the statute of frauds;
Intent for the servitude to be enforceable; AND
The servitude must touch and concern the land.
Priority: Medium
What must be present to enforce the burden of an Equitable Servitude?
All of the requirements for enforcing the benefit, PLUS:
The new owner must have notice of the servitude (actual, constructive, or inquiry notice).
Priority: Medium
What is the Common Scheme or Plan Doctrine?
A court will imply reciprocal restrictive covenants on parcels of land in a subdivision sold by a developer if:
The developer had a common scheme or plan that all parcels of land would be subject to at the time the subdivision was sold; AND
The defendant land owner had actual, inquiry, or record notice of the restriction.
Priority: Low
What is a Common Interest Community (CIC)?
A development or neighborhood in which individually owned lots are burdened by a servitude that imposes an obligation to:
Pay for or contribute to the maintenance held in common by the individual owners; OR
Pay dues or assessments to an association that provides services to the common areas or enforces the servitudes.
*CIC’s include Condo’s, Co-ops, and Home Owner Associations.
Priority: N/A
Easements
Easement in Gross vs. Easement Appurtenant
A non-possessory interest in the use of someone else’s land.
Easement in Gross: Benefits a specific owner’s enjoyment, and DOES NOT attach to the land. Doesn’t pass to subsequent owners.
Easement Appurtenant: Benefits ANY owner’s enjoyment, and DOES attach to the land. Passes to subsequent owners.
Priority: HIGH
Easements
What is an Easement by Grant?
An express agreement by the grantor allowing the easement, which must:
Be in writing signed by the grantor and satisfy the statute of frauds;
Identify the land and parties involved; AND
Indicate the grantor’s intent to convey the easement.
Priority: HIGH
Easements
What is an Easement by Prescription?
It’s created when the possessor’s use of the land is:
Open and notorious;
Continuous;
Hostile; AND
For the statutory period.
Priority: HIGH
Easements
What is an Easement by Implication?
It’s established when:
A single tract of land is divided by a common owner;
A pre-existing use by the grantor is established prior to the land division;
A continuous and obvious indication that the use was intended to be permanent;
The use affects the value of the land conveyed; AND
Such use is reasonably necessary for the owner’s use.
Priority: HIGH
Easements
What is an Easement by Necessity?
It’s created when:
The original piece of land owned by the one owner is subdivided; AND
Access is essential to the use of the property because no other ingress or egress is available.
Priority: HIGH
Easements
What are the ways an Easement can be Terminated?
Estoppel;
Termination of the necessity that created the easement;
Involuntary destruction of the servient estate;
Condemnation of the servient estate;
Written release;
Abandonment;
Merger; OR
By prescription
Priority: Medium
What is a License?
It is a privilege to use another’s land in a particular way.
It doesn’t need to be in writing, and may be revoked at any time (although a licensor may be estopped from revoking it if the licensee invested money/labor in reasonable reliance).
Priority: Low
What is a Fixture?
(under the Common Law)
A fixture is:
Personal property,
That is attached to land or a building, AND
Regarded as an irremovable part of the real property.
*A fixture is treated as real property, and passes with the ownership of the land (unless otherwise agreed).
Priority: Low
What factors are considered to determine if an item is a Fixture?
The nature of the item;
The manner in which it’s attached;
The damage that would result if removed; AND
The extent to which the item is adapted to the property.
*Whether an item is a fixture is determined by the objective intent of the party who attached the item.
*Under the trade fixture exception: an item attached to the property for use in the tenant’s business is NOT a fixture unless removal would cause substantial damage.
Priority: Low
What are the elements of Adverse Possession?
It allows someone who is in possession of land, owned by another, to acquire title when the possession of the property is:
Continuous for the statutory period (i.e. 10 yrs);
Open and notorious;
Exclusive;
Actual; AND
Hostile and under a claim of right.
*Adverse possessors in privity may aggregate their years spent possessing the property to meet the statutory period.
Priority: Low
What is Constructive Adverse Possession?
When a person takes possession of only a portion of the land covered under color of title → that possession extends to the entire portion of the landdescribed in the title for adverse possession purposes.
Priority: N/A
