Real Property _ Rights in Land Flashcards
Easements - what is it?
EASEMENTS
- The right to use someone else’s land
Creation of an Easement:
EASEMENTS
- Writing (Expressly)
- By Prescription
- By Implication
- By Necessity
Express Easement
EASEMENTS
An easement may be created by express grant so long as it satisfies the Statute of Frauds.
Easement by Prescription
EASEMENTS
An easement by prescription is created when one uses the land of another and it is open and notorious, adverse, and continuous.
Easement by Implication
EASEMENTS
An easement by implication is created when, prior to the division of a tract of land, a use existed on the servient estate that was apparent and continuous when the tract was divided, the easement is reasonably necessary for the enjoyment of the dominant estate.
Easement by Necessity
EASEMENTS
An easement by necessity exists when an owner of a tract of land sells part of the tract and deprives one lot of access to a public road or utility line.
A right of way by absolute necessity is implied over the lot with access to the public road or utility line.
An easement by necessity terminates when the necessity terminates.
An easement can be p—— or n——
EASEMENTS
An easement can be positive or negative
How long will an easement last?
EASEMENTS
- An easement will last FOREVER, unless
terminated
What are the two types of easements?
EASEMENTS
Appurtenant or In Gross
Type of Easement
Appurtenant
EASEMENTS
An easement appurtenant benefits the holder in his physical use or enjoyment of another tract of land.
An easement appurtenant requires two tracts of land—a dominant tenement (the estate benefitted by
the easement) and a servient tenement (the estate subject to the easement right).
For an easement appurtenant, the benefit to be realized by the easement must directly benefit the possessor of the dominant tenement. A person who subsequently possesses
the dominant tenement becomes entitled to the benefit of the easement.
Type of Easement
In Gross
EASEMENTS
An easement in gross is created where the holder of the easement interest acquires a right of special use in the servient tenement independent of his ownership or possession of another tract of land
What does a court consider to determine the scope of an easement?
EASEMENTS
A court looks at the reasonable intent of the parties, unless the language of the easement indicates otherwise. Standard rules of construction apply, with ambiguities resolved in favor of the grantee (except for gratuitous conveyances). Subsequent conduct and the parties’ intent for a reasonable scope that serves the grant’s purposes and foresees reasonable changes in use are relevant.
Who has the duty to repair an easement when it is used exclusively by the easement holder?
EASEMENTS
If the easement holder is the only party using the easement, they have the duty to repair. Absent an agreement to the contrary, the owner of the servient estate has no duty to repair
What is the duty to repair when an easement is non-exclusive (used by both servient and dominent estate owners)?
EASEMENTS
If the easement is non-exclusive (used by both the servient and dominant estate owners), both parties have a duty to repair. A court will apportion repair costs based on their relative use.
What happens when an easement holder exceeds the scope of use?
EASEMENTS
When an easement holder exceeds the scope of use, the easement is surcharged. A court may grant an injunction against the excess use to the servient estate holder, which does not terminate the easement, and may also award damages
Easements are terminated by:
EASEMENTS
(a) if the servient estate is purchased by a bona fide purchaser,
(b) by estoppel,
(c) by necessity,
(d) destruction,
(e) condemnation,
(f) stated condition occurs,
(g) release,
(h) abandonment,
(i) merger, or
(j) prescription.
Note: Non-use is not enough for abandonment
Termination of Easements - Purchased by BFP
What is a BFP?
EASEMENTS
A bona fide purchaser is a purchaser for value who takes without notice of a burden. A bona fide purchaser who takes property without notice of the easement doesn’t take on the burden of an easement.
For Value
A purchase is for value if the purchaser paid any legally significant value.
Without Notice
Notice may be actual, constructive, or by inquiry.
Termination of Easement - Estoppel
EASEMENTS
An easement terminates by estoppel when the easement holder, either through conduct or by assertion, purports to terminate the easement, the owner of the servient tenement
reasonably relies on the conduct or statements.
Termination of Easement - Necessity
EASEMENTS
If the need for an easement ends, the easement by necessity terminates.
Termination of Easement - Destruction
EASEMENTS
If the easement is in a structure and there is involuntary destruction of the structure, the easement is destroyed.
Termination of Easement - Condemnation
EASEMENTS
If the servient estate is condemned, the easement is destroyed.
Termination of Easement - Stated Condition
EASEMENTS
If the parties set forth specific conditions upon the happening of which the easement right terminates, the conditions control.
Termination of Easement - Release
EASEMENTS
An easement may be terminated by specific release given by the easement holder. For a valid release, there must be concurrence of both owners, executed with the formalities required for the valid creation of an easement.
Termination of Easement - Abandonment
EASEMENTS
An easement may be terminated when the easement holder demonstrates an intent to permanently abandon the easement by some physical action. The easement holder
must manifest intent to never make use of the easement again; mere non-use is insufficient.
Termination of Easement - Merger
EASEMENTS
An easement terminates if the ownership of the dominant and servient tenements come together (e.g., the owner of the servient estate buys the dominant estate).
Termination of Easement - Prescription
EASEMENTS
An easement may be terminated when a long-continued possession and enjoyment of the servient estate indicates to the public that no easement existed.
The owner of the servient tenement must interfere with the easement to the extent that it creates a cause of action in favor of the easement holder. The interference must be open, notorious, and without permission for the statutory period.
EASEMENTS
Transfer of Easement
EASEMENTS
An easement will pass to a burdened estate so long as the new owner has notice of the easement
What are Covenants?
COVENANTS
- Promise for a promise
- Always created by writing
- Generally last forever
A Covenant “runs with the land” if (5)
COVENANTS
1) Writing
2) Intent
3) Notice
4) Privity
5) Touch & Concerns the land
For a burden to run with a restrictive covenant, there must also
(what kind(s) of privity)
COVENANTS
For a burden to run with a restrictive covenant, there must also be vertical and horizontal privity
For the benefit to run with the land, there must be
COVENANTS
For the benefit to run with the land, there must be
vertical privity, intent, and it must touch and concern the land.
Vertical Privity
COVENANTS
Vertical privity exists when one party transfers her entire interest in property to another party
Horizontal Privity
COVENANTS
Horizontal privity exists when the two parties share some interest in the land independent of the covenant. To establish horizontal privity, there must be a conveyance of the property between the original parties.
Equitable Servitude:
EQUITABLE SERVITUDE
- Looks like a Restrictive Covenant
- Seek equitable relief: Injunction
Let’s break Equitable Servitude Down More
What is an equitable servitude (full rule)
EQUITABLE SERVITUDE
An equitable servitude gives the holder the right to restrict a third party in the use of their land. It is enforceable in equity against successors in interest who have notice of the restriction, even if they weren’t parties to the original covenant agreement.
What are the requirements for a court to enforce an equitable servitude?
EQUITABLE SERVITUDE
For a court to enforce an equitable servitude, the covenant must: (1) be in writing, (2) touch and concern the land, (3) be intended by the parties to run with the land, and (4) the party against whom enforcement is sought must have notice of the servitude.
The burden associated with an equitable servitude must be contained in what?
EQUITABLE SERVITUDE
The burden associated with an equitable servitude must be contained in a writing.
What does it mean for an equitable servitude to “touch and concern the land”?
EQUITABLE SERVITUDE
An equitable servitude touches and concerns the land if it affects the benefitted party’s use of the land.
What is required regarding the intent of the parties in an equitable servitude?
EQUITABLE SERVITUDE
The parties must intend for the restriction to run with the land.
What types of notice are recognized for an equitable servitude?
EQUITABLE SERVITUDE
Notice for an equitable servitude may be actual, record, or inquiry.
What is an implied reciprocal servitude?
EQUITABLE SERVITUDE
An implied reciprocal servitude is a concept in property law where a large tract of land divided into lots (like a gated community or subdivision) has enforceable restrictions against all lot owners. These restrictions are part of a common scheme and apply uniformly to everyone.
What is essential for the enforceability of restrictions in an implied reciprocal servitude?
EQUITABLE SERVITUDE
For restrictions in an implied reciprocal servitude to be enforceable, they must be enforceable against everyone involved, and there must be notice of these restrictions to all parties.
What does the “common scheme” refer to in the context of an implied reciprocal servitude?
EQUITABLE SERVITUDE
In an implied reciprocal servitude, the “common scheme” refers to the uniform application of restrictions across all lot owners within a subdivided tract of land. The scheme must apply to everyone, not just to an individual like “Shyammyy” or “Anni”.
Implied Reciprocal Servitude (AB)
EQUITABLE SERVITUDE
- Common Scheme & Notice
LICENSE
LICENSEE
License:
the privilege to use another’s land in a particular way
- Right to enter
- Freely revocable by grantor
- UNLESS coupled with an interest (ie. licensee invested substantial money/labor in reasonable reliance.)
Example:
o If you are causing a problem at a stadium, they have a right to kick you out
Note: *A license is NOT an interest in land.
Profit
PROFIT
- Right to enter the land & take something off the land
gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another
Elements of a Taking:
TAKINGS CLAUSE
- Government taking private property for “public use” (Public use is a very broad definition)
- Requires “just compensation”
TAKING CLAUSE (4)
TAKINGS CLAUSE
Under the Fifth Amendment, the government may not (1) take (2) private property (3) for public use (4) without just compensation. This rule is applicable to the states vis a vis
the Fourteenth Amendment.
Total Taking
TAKINGS CLAUSE
A total taking occurs when the government appropriates, destroys or permanently physically invades property, or permanently deprives an owner of all economic value.
Partial Taking
TAKINGS CLAUSE
Property regulations do not require compensation; however, a regulation may amount to a partial taking.
To evaluate whether a regulation amounts to a partial taking, a court will balance
(1) the social goals the state seeks to advance,
(2) the extent to which the regulation interferes with an owner’s reasonable, investment-backed expectations, and
(3) the diminution in value to the owner.
Takings Clause - For Public use
TAKINGS CLAUSE
Govt’s Reasonable Belief it Benefits Public
Takings Clause - Just Compensation
TAKINGS CLAUSE
FMV at Time of Taking; or
Terminate Regulation & Pay Damages
WATER RIGHTS
WATER RIGHTS
- Reasonable use of water
- Reasonable amount of water
- Reasonable means to alter flow of rain/snow
Crops:
WATER RIGHTS
- Generally go with the property
- Natural: “real property”
- Man-made: “personal property”
Crops - Exceptions:
WATER RIGHTS
- Express agreement
- Tenant with right to harvest
Adjoining Undeveloped Property:
SUPPORT RIGHTS
- Strict Liability for damage
Adjoining Developed Property:
SUPPORT RIGHTS
- Strict Liability if damage would have happened anyway
- Or else negligence
Digging on Adjoining Land:
SUPPORT RIGHTS
- Negligence for damage
Right to Lateral Support
SUPPORT RIGHTS
A landowner has a right to lateral support. An adjoining landowner who withdraws lateral support is strictly liable for damages caused by any subsidence if the land is in its
natural condition. If the land has been improved (e.g., by buildings), the majority of jurisdictions hold that the adjoining landowner is only liable if he acted negligently.
Private Nuisance:
NUISANCE
- Unreasonable interference with use & enjoyment
- Reasonable person standard
A private nuisance is the unreasonable interference with the use and enjoyment of someone’s property. The key is that the interference must be objectively unreasonable to a reasonable person. Abnormal sensitivities or allergies do not typically constitute a nuisance
How is reasonableness determined in the context of a private nuisance?
NUISANCE
In private nuisance, the interference’s reasonableness is judged by an objective standard – what a reasonable person would find unreasonable. Personal sensitivities or unique conditions (like unusual allergies) do not typically make something a nuisance.
What is a public nuisance?
NUISANCE
- Affects public at large
- Private plaintiff must prove special damages
A public nuisance is an act that affects the public at large. It is typically a claim brought by a government official (like the local attorney general) because it affects the entire community
What must a private individual prove when bringing a public nuisance claim?
NUISANCE
When a private individual brings a public nuisance claim, they must prove special, unique damages. This is necessary because the claim normally affects the public at large and is usually handled by public officials.
Playing basketball on a driveway at 5:00 in the afternoon
Is this Private Nuisance?
NUISANCE
Noppppeeee.
Playing basketball on a driveway at 5:00 in the afternoon is not a private nuisance, as it is not considered unreasonable to a normal, reasonable person
Playing heavy metal music loudly with extra bass and treble at 3:00 in the morning
Is this Private Nuisance?
NUISANCE
Playing heavy metal music loudly with extra bass and treble at 3:00 in the morning would be a private nuisance, as it would interfere with any reasonable person’s use of their property.
Common Interest Owned Community:
COMMON INTEREST OWNED COMMUNITY
- Lot owners must pay dues to an association
Property Owners Association:
COMMON INTEREST OWNED COMMUNITY
- Owners required to belong to association & pay dues
Condominium
COMMON INTEREST OWNED COMMUNITY
- Created by statute
- Must file a declaration & plat
Condominium Owners:
COMMON INTEREST OWNED COMMUNITY
- Pay taxes, insurance, mortgage for their unit
- Own common areas as tenants in common
- Cannot separate ownership of unit &
common areas
Co-Op:
COMMON INTEREST OWNED COMMUNITY
- Corporation owns building & leases units to shareholders
- One mortgage on WHOLE PROPERTY
- Tenant pays share of fee for taxes &
mortgage
Forming a Common Interest Owned Community:
COMMON INTEREST OWNED COMMUNITY
1) Declaration
2) Association
3) Board
4) Developer
Developer:
COMMON INTEREST OWNED COMMUNITY
- Developer gives power to Association
- Association has 2 years for 2/3 vote to
terminate Developer - Developer cannot change declaration (unless
stated)
Board:
COMMON INTEREST OWNED COMMUNITY
- Acts on behalf of Association to manage the community
Board Rules
COMMON INTEREST OWNED COMMUNITY
Must be “reasonably related to further a legitimate purpose” of the Association
Powers of the Community:
COMMON INTEREST OWNED COMMUNITY
- Levy assessments & fees
- Manage/improve common areas
- Create rules
- Impose fines
- Conduct reasonable inspections
- Revoke privileges
- Litigate as the Association
Duties of the Community:
COMMON INTEREST OWNED COMMUNITY
- Treat members fairly
- Ordinary care in managing property/finances * Reasonable access to information
Who has to burden to prove breach by Association?
COMMON INTEREST OWNED COMMUNITY
- BURDEN on members to prove breach by
Association
Duties of Board Members:
COMMON INTEREST OWNED COMMUNITY
- Act in good faith
- Standard of Care: an ordinary director of a
common interest owned community - Board members not jointly/severally liable
