Real Property Barbri 2 Flashcards
What is an easement?
An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land
What rights does an easement holder have?
As easement holder has the right to use another’s tract of land for a specified purpose, but has no right to possess or enjoy that land
How long is an easement for?
An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.
Easements are…
affirmative or negative
What is an affirmative easement?
the right to go onto and do something on servient land
What is a negative easement?
entitles holder to prevent the servient landowner from doing something that would otherwise be permissible
What are the four categories of negative easements?
- Light
- Air
- Support
- Stream water from an artificial flow
- a minority of statements allow a negative easment for scenic view
lyle’s ass
How are negative easements created?
Negative easements can only be created expressly, by a writing signed by the grantor. There is no natural or automatic right to a negative easment.
What is an easement appurtenant?
An easement is appurtenant when it benefits the holder in his physical use or enjoyment of hi own land.
Two parcels of land must be involved:
1. a dominant tenement, which derives the benefit
2. a servient tenement, which bears the burden
What i an easement in gross?
An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land
However, there is no benefited or dominant tenement because the easment benefits the holder rather than another parcel
Some examples of an easement in gross
- right to place a billboard on another’s lot
- the right to swim in another’s pond
- the utility company’s right to lay power lines on another’s lot
How does transfer of an easement appurtement work?
The appurtenant easement passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance
The burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a BFP without notice of the easement
Is an easement in gross transferrable?
An easement in gross is not transferrable unless it is for commercial purposes
How do you create an easement?
- prescription
- implication
- necessity
- grant
PING
How is an easmement created by grant?
Any easement must be memorialized in writing and signed by the holder of the servient tnement unless its duration is brief enough to be outside the coverage of a state’ SoF
So usually, if easement >1 year, has to be in writing to be enforceable and comply with all formal requisites of a deed
How is an easement created by implication?
Easements by implication are created by operation of law - an exception to the SoF
Two types of implied easements
- easement implied by preexisting use
- easement implied without any existing use
- easement by necessity
Easement implied from pre-existing use?
Quasi-easement
Easement implied without any existing use?
- Subdivision plat-when lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots, buyers of their lots have implied easements to use the streets to access their lots
- Profit a Prendre-The holder of a profit a prendre has an implied easement to pass over the surface of the servient land and to use it as reasonably necessary to extract from the servient property its minerals or some product of the servient property (fish, timber, game), as specified by the terms of the profit
What is an easement by necessity?
An easement by necessity will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land. The owner of the servient parcel has the right to locate the easement.
Elements to acquire a prescriptive easement
- Continuous and uninterrupted use
- Open and notorious use
- Actual use that need not be exclusive
- Hostile use
- note that permission cancels an easement by presciption - the use HAS to be hostile
- generally prescriptive easments can be acquired in public land
COAH
What is an easement by express reservation?
An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose
Majority view: easement can be reserved only for the grantor. attempt to reserve for anyone else is void.
How is the scope of an easement determined?
- The scope is deterined by the terms of the grant or conditions that created it.
- If an easement is created, but not specifically located on the servient tenement, an easement of sufficient width, height, and direction for the intended use will be implied
- The owner of the servient tenement may select the location of the easement as long as their selection is reasonable
- If there are no specific limitations in the grant, courts assume that as easement was intended to meet both present and future needs of the dominant tenement (like easement may wide to fit newer, wider cars)
- If the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate
What happens when there is overuse or misuse of an easement?
Such use does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse.
Servient Estate Repairs? Who has the duty to repair?
- Servient owner generally may use her land in any way she wishes so long as her conduct does not interfere with the easement
- The easement holder has the duty to make repairs to the easement if she is the sole owner, but if both easement holder and servient owner are users, court will apportion repair costs
Eight Ways to terminate an easement
- Estoppel
- Necessity
- Destruction
- Condemnation
- Release
- Abandonment
- Merger
- Prescription
Easement may also be terminated udner its stated conditions, meaning the original easement grant may specify when or under what conditions the easement will terminate.
End Cramp
How is an easement terminated through estoppel?
An oral expresson of an intent to abandon an easement won’t terminate an easement unless it’s also commited to writing (a release) or accompanied by action (abandonment)
If the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations, the easement terminates through estoppel
How to easements by necessity terminate?
Easements created by necessity expire as soon as the necessity ends, unless the easmement was reduced to an express grant.
Will destruction terminate an easement?
Yes, destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement
Will condemnation terminate the easement?
Condemnation on the servient estate by governmental eminent domain power will terminate the easement
Courts split on whether easement holders are entitled to compensation
Will release terminate the easement?
A release given by the easement holder to the servient land owner will terminate the easement (applies also to easement in gross).
This must be in writing (???)
What must an easement holder show to terminate an easement by abandonment?
They must show physical action and intent to never use the easement again.
Termination by Merger (Unity of Ownership)
Easements
An easement is extinguished when title to the easement and title to the servient land become vested in the same person
If the same person acquires ownership of both easement and the servient estate, those estates merge and the easement is destroyed
Termination by Prescription
A servient owner may extinguish the easement by interfering it in accordance with the elements of adverse possession (ONCHA)
How will courts treat party walls and common driveways?
Courts will treat a wall erected party on the property of each f two adjoining landowners as belonging to each owner to the extent it rests upon their land
Courts will also imply mutual cross easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it
How are party walls and common driveways created?
- need written agreement SoF for the express creation of a party wall or common driveway agreement, but an irrevocable license can arise from detrimental reliance on a parol agreement
- party walls and cmmon driveways can also result from implication or prescription
Covenants for party walls and common driveways?
If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or the driveway, the burdens and benefits of these promises run to the successive owners of each parcel
What is a license?
A mere privlege to enter another’s land for some delineated purpose
Unlike an easement, a license is not an interest in land. It is merely a privilege, revocable at the will of the licensor
A license is personal to the licensee and thus, inalienable. Any attempt to transfer a license results in revocation by operation of law
Is a writing needing to create a license?
No
What is a failed attempt to create an easment?
It is a license. If a grantor orally grants an easement for more than one year, it is unenforceable because it is not in writing. Becomes a license.
Are licenses revocable?
Licenses are freely revocable, at the will of the licensor, unless estoppel applies to bar revocation
When does estoppel apply to bar revocation?
Only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation
The license becomes an easement by estoppel, which lasts until the holder recieves sufficient benefit to reimburse him for his expenditures
License coupled with an interest?
A license coupled with an interest is irrevocable as long as the interest lasts
The profit entitles its holder to?
The profit entitles its holder to enter the servient land and take from it some resourcs, or some product of the property
How are profits created and terminated?
Profits à prendre are most commonly created by deed but may also be created by statute, implication or prescription.
Profits can be terminated by statute, express release, unity of possession or abandonment (much like easements). They can also cease to exist if they are exhausted ie if the subject matter of the profit is depleted or destroyed to the point of non-existence.
What is a covenant?
A covenant is a written promise to do or not do something related to land
It is unlike an easement because it is not the grant of a property interest, but rather a contractual limitation or promise regarding landd
Real covenants are normally found in deeds and when certain requirements are met, they run with the land at law, wich means that subsequent owners may enforce or be burdened by covenants
What is a negative/restrictive covenant?
A restrictive covenant is a promise to refrain from doing something related to land
What is an affirmative covenant?
A promise to do something related to land
Identifying a covenant v. equitable servitude
If the plaintiff wants money damages, must construe promise as a covenant. If the plaintiff wants an injunction, must construe promise as equitable servitude.
What are the requirements for a burden to run with the land?
If the following requirements are met, any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it
Writing
Intent
Touch and Concern
Horizontal and vertical Privity
Notice
WITHN
Burden Requirement: writing
The OG promise (between A and B) must have been in writing
Burden Requirement: intent
The original covenanting parties must have intedned that the covenant would run
Intent may be inferred from circumstances surrounding the creation of the covenant, but is usually found in the language of the conveyance itself
Courts are generous in finding requisite intent
Burden Requirement: touch and concern
The promise must affect the parties’ legal relations as landowners and not simply as members of community at large
Restrictive Covenants: touch and concern the land if they restrict the parcel owner in her use of that parcel
Affirmative Covenants: touch and concern the land if they require the holder of the servient estate to do something that increases her obligations in connection with the land
Covenants to pay money to be used in connection with the land and covenants not to compete DO touch and concern the land
Burden Requirement: horizontal privity
- refers to the nexus between the original promising parties
- requires they be in succession of estate, meaning grantor-grantee or landlord-tenant or mortgagor-mortgagee relationship when covenant was created
- two must have shared some interest in the land independent of the covenant
- HARD to establish
- looking at the ORIGINAL parties
Burden Requirement: vertical privity
- refers to the nexus between the successor in interest and the originally covenanting party
- requires some non-hostile nexus, like contract, devise, or descent
- no vertical privity if successor acquired her interest through adverse possession
Burden Requirement: notice
- Successor must have had notice of the promise when she took
- Under modern recording acts, to be bound by a covenant, a subsquent purchaer for value must have had actual, inquiry, or record notice of the covenant at the time of purchase
Requirements for the Benefit to Run
If the following requirements are met, the promissee’s successor in interest may enforce the covenant:
Writing
Inent
Touch and concern
Vertical privity
WITV
Benefit Requirements: writing
the original promise must have been in writing
Benefit Requirements: intent
the originally covenanting parties must have intended that the benefit would run, meaning they intended that successors in interest to promisee would be able to enforce the covenant
Benefit Requirements: touch and concern
the benefit of a covenant touches and concerns the land if the promised performance benefits the promisee and her successors in their use and enjoyment of the benefitted land (promise must affect parties as landowners)
Benefit Requirements: vertical privity
There must be a non-hostile nexus between the original promisee and the successor in interest
**horizontal privity not required for the benefit to run
Examples of specific situations that involve real covenants
- promises to pay money to be used in connection with the land
- covenants not to compete run with the land
Remedy for a breach of a real covenant?
- Remedied by an award of money damages, collectible from the defendant’s general assets
- If an injunction is sought, the promise may be enforced as equitable servitude
How can a covenant be terminated?
- written release
- merger of the benefited and burdened estates OR
- the condemnation of the burden property
What is an equitable servitude?
An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser
How to create an equitable servitude
- Writing: generally, but not always, original promise was in writing (common scheme doctrine exception)
- Intent: original parties intended that the promise would be enforceable by and against successors
- Touch and Concern: promise affects the parties as landowners
- Notice: subsequent purchasers of land burdened by the covenant had actual, inquiry, or record notice of the covenant when they acquired the land
- ES, for equitable servitudes
WITNES
Is privity of estate required for an equitable servitude?
NOPE, no privity required to be enforceable against assignees
The Common Scheme Doctrine
This is an exception to the general requirement that the original promise be in writing for an equitable servitude
- The court will imply a reciprocal negative servitude (implied equitable servitude) to hold the unrestricted lot holder to the promise.
- If a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on all parcels provided there was a common cheme of development and notice of the covenants.
What are the elements of the common scheme doctrine?
- When the sales began, the subdivider (A) had a gneral scheme of residential development which included the defendant’s lot AND
- the defendant lot holder had notice of the promise contained in those prior deeds when it took
Three forms of notice: actual, inquiry, record notice
A court will not enforce an equitable servitude if: (equitable defenses to enforcement)
- the neighborhood conditions have changed so signficantly that enforcement would be inquitable
- the person seeking the enforcement is violating a similar restriction under his own land
- a benefitted party acquiesed in a violation of the servitude by a burden party
- a benefited party acted in such a way that a reasnoable person would believe the covenant was abandoned or waived (estoppel)
- the benefited party fails to bring suit against the violator within a reasonable time (laches)
How to extinguish an equitable servitude?
- written release from the benefit holders
- merger of the benefited and burdened estates
- condemnation of the burdened property
What is adverse possession?
Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into real property
Title by adverse possession results from the operatiom of the statute of limitations for ejectment
If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, title vests in the possessor
Elements of Adverse Possession
Open
Notorious
Continuous
Hostile
Actual
ONCHA
Adverse Possession: continuous?
- must be continuous throughout the statutory period
- intermittent periods of occupancy are not sufficient
- constant use by claimant is not required as long as possession is of a type than the usual owner would make
- does not need to be continuous possession by the same person
- an advere possessor can TACK her own possession onto periods of adverse possession of her predecessors
Adverse Possession: open and notorious?
adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occuring
Adverse Possession: actual and exlcusive
An adverse possessor will gain title only to land they actually occupy. In some cases, however, actual possession of th entire parcel claimed is not necessary. If an adverse possessor enters under color of title (by invalid deed), she is deemed to be in constructive notice possession of all the land that the deed describes, as long as she is in actual possession of a reasonable portion of that land
Exclusive possession means that the possessor is not sharing with the true owner or the public. Two or more people acting together could succeed in obtaining title by adverse possession - would take as tenants in common
Adverse Possession: hostile
The hostility requirement is satisfied if the possessor enters without the owner’s permission
Adverse possessor’s state of mind is irrelevant
It doesn’t matter whether the possessor actually thought they were on their own land or knew that they were encroaching on another’s land
When possession starts permissively, possession does not become adverse until the possessor makes clear to the true owner the fact that they are claiming hostilely
- With co-tenants, ouster is required for possession to be hostile. Possession of the whole is not enough.
- Where a grantor stay in possession of land after their conveyance, they’re persumed to be there with the permission of the grantee
- A possessor enters under claim of right when they reasonably believethat the property belongs to them - usually from an invalid deed. When someone assumes possession is hostile and adverse, the possession is hostile and adverse
Adverse Possession: running of statute
The statute of limitations begins to run when the true owner can first bring suit. Filing a suit will stop the period from running; however, the suit must be pursued to judgment.
Adverse Possession: property taxes
Most states do not require the adverse possessor to pay taxes on the property, but consider such payment good evidence of a claim of right
Adverse Possession: tacking
one adverse possessor may tack on his time with the land with his predecessor’s time, so long as there is privity between the possessors
Privity is satisfied by any non-hostile nexus, such as contract, deed, or will
By contrast, privity is absent when the possessor acquires possession by ousting his predecessor in possession
Adverse Possession: disabilities
The statute of limitations will not run against a true owner who is afflicted by a disability (that existed at the time the cause of action arose) at the inception of the adverse possession
Adverse Possession: future interests
The statute of limitations does not run against a holder of a future interest until the interest becomes possessory
Statute will begin to run when right is asserted by the grantor, not when the event or condition happens that gives right to the grantor’s right
Adverse Possession: effect of covenants in true owner’s deed
If an adverse possessor uses the land in violation of a restrictive covenant in the owner’s deed for the statute of limitations period, they take free of the restriction. If they comply with the covenant, they take title subject to the restriction.
What land cannot be adversely possessed?
Title to government-owned land and land registered under a Torrens system (in place in a small minority of states, where title is established with a governmental authority that issues title certificates to owners)
Two steps of a real estate conveyance
- The land contract, which conveys equitable title. The land contract endures until step 2.
- The closing, where the deed passes legal title and becomes our operative document.
Land Sale Contracts: Statute of Frauds
- Because the real estate contract involves an interest in land, the statute of frauds requires a signed writing by the party against whom enforcement is sought
The writing must:
1. identify the parties
2. describe the property AND
3. include the price (the consideration) or a means of determining the price (like fair market value)
these terms must be definite enough for a court to enforce the contract
**only signature of party being sued is required
What if a land contract has an inaccurate description of land?
Sometimes the land description in the contract will overstate or understate the amount of land being transferred
