Real Property - Rights in Land

Question 1

What is a real covenant?

Answer 1

A real covenant is a promise concerning the use of the land that runs to successors of the promise. It typically requires the holder to either do something OR refrain from doing something to the land.

Question 2

Benefit v. burden of covenant

Answer 2

The benefit of the covenant is the ability to enforce the covenant. The burden of the covenant is being subject to it or bound by it.

Question 3

In order for a benefit to run to successors…

Answer 3

In order for a benefit to run to successors, the following four elements must be present:
1. Writing. The covenant must be included in writing in the original conveyance (i.e., must satisfy the statute of frauds).

2. Intent. The original parties must have intended for the covenant to run with the land.

3.Touch and Concern. The covenant must touch and concern the land (i.e., the benefit of the covenant must affect both the promisee and promisor as owners of the land – usually by increasing the value of the land).

4. Relaxed Vertical Privity. The successor need only take an interest that is carved out of the original party’s estate (i.e., the successor can take less than the original party’s entire interest in the property – e.g., the successor takes a life estate from a fee simple).

Question 4

In order for a burden to run to successors…

Answer 4

In order for a burden to run to successors, the following six elements must be present:

1. Writing. The covenant must be included in writing in the original conveyance (i.e., must satisfy the statute of frauds).
2. Intent. The original parties must have intended for the covenant to run with the land.
3. Touch and Concern. The covenant must touch and concern the land (i.e., the burden of the covenant must affect both the promisee and promisor as owners of the land – usually by increasing the value of the land).
4. Strict Vertical Privity. The successor must take the original party’s entire
   interest.
5. Horizontal Privity. The instrument used in the conveyance of the property between the original parties must contain the estate and the covenant (e.g., the deed contains the covenant).
6. Notice. The new owner must have notice of the covenant. Notice may be either actual or constructive (i.e., record notice). Inquiry notice may suffice for equitable servitudes (e.g., an inspection of the land would reveal the servitude).

Question 5

What is an equitable servitude? How is it different from a covenant?

Answer 5

An equitable servitude operates like a real covenant with easier requirements. The main difference between a real covenant and an equitable servitude is in the remedy. The remedy for a breach of a real covenant is money damages – the remedy for a breach of an equitable servitude is injunctive relief.

Question 6

What are the requirements for an equitable servitude?

Answer 6

For equitable servitudes, there is NO privity requirement. In order to bind a successor, the following four elements must be present:

1. Writing. The servitude must be included in writing in the original conveyance (i.e., must satisfy the statute of frauds).
2. Intent. The original parties must have intended for the servitude to run with the land.
3. Touch and Concern. The servitude must touch and concern the land (i.e., the servitude must affect both the promisee and promisor as owners of the land – usually by increasing the value of the land).
4. Notice. The new owner must have notice of the servitude. Notice may be either actual, constructive, or inquiry.

Question 7

Where do implied reciprocal servitudes arise?

Answer 7

Implied reciprocal servitudes arise in planned subdivisions.

Question 8

Req’s for implied reciprocal servitude?

Answer 8

Most jurisdictions impose the following requirements to enforce an implied reciprocal servitude:

1. There must be intent to create a servitude on all plots (i.e., a common scheme);
2. The servitude must be negative (i.e., a promise to refrain from doing something);

AND

3. The party against whom enforcement of the servitude is sought must have actual, constructive, or inquiry notice.

Question 9

Can Implied reciprocal servitudes be implied

Answer 9

ummm, yeah. it’s in the name bruh.

They are implied from the common scheme and a writing is NOT required for its creation.

Question 10

What is an easement?

Answer 10

An easement is a right held by one person to use another’s land.

Question 11

What is an express easement? Types?

Answer 11

An express easement can be created by grant or by reservation:

1. By Grant. An express easement by grant arises when it is affirmatively created by the parties in a writing that satisfies the statue of frauds.
2. By Reservation. An express easement by reservation is created when a grantor conveys land but reserves an easement right in that land for his own use.

Question 12

If an easement is created but not specifically located on the servient tenement…

Answer 12

…, a location of sufficient size to make the intended use reasonably convenient will be implied. The owner of the servient tenement may indeed select the location of the easement so long as her selection is reasonable. (See immanuel q # 28)

Question 13

An implied easement by implication is created when:

Answer 13

1.A single tract of land is divided by a common owner and a piece of the land is conveyed to another;

2. Before the division, the common owner used the single tract of land as if there was an easement on it;
3. After the division, the common owner’s use of the conveyed land must be
   continuous and apparent;

AND

4. Such use must be reasonably necessary for the owner’s use and enjoyment.

Question 14

What is an implied easement by necessity?

Answer 14

An implied easement by necessity is created when:

1. A single tract of land is divided by a common owner and a piece of the land is conveyed to another;

AND

2. Necessity arose when the land was divided into two separate estates where one of the properties became virtually useless without the easement.

Also applies to a situation where building is only accessible via stairway in another building (assuming above elements are met).

Question 15

What is an implied easement by prescription?

Answer 15

An implied easement by prescription is created when a landowner allows a trespasser to use his land continuously for the statutory period.

The trespasser’s use must be:

1. Hostile (i.e., without permission from the owner of the land);
2. Open and notorious (i.e., not hidden);

AND

3. Continuous for the statutory period.

Question 16

How is an implied easement by prescription different than adverse possession requirements?

Answer 16

Unlike adverse possession, the use need NOT be exclusive (e.g., a public easement to access a beach).

Question 17

In terms of terminating an easement, what is a release?

Answer 17

Release. An easement is terminated if the holder expressly releases it. The release must be in writing and satisfy the statute of frauds.

Question 18

In terms of terminating an easement, what is a merger?

Answer 18

Merger. An easement is terminated if the holder acquires fee title to the underlying estate – the easement merges into the title.

Question 19

In terms of terminating an easement, what is an abandonment?

Answer 19

Abandonment. An easement is terminated if the holder demonstrates an intent to never use the easement again through physical action (i.e., requires more than non-use or statements).

Question 20

But the creation of an easement appurtenant requires

Answer 20

two pieces of property: a dominant estate and a servient one.

See MBE Q folder, q 36

Question 21

In terms of terminating an easement, what is a prescription?

Answer 21

Prescription. An easement is terminated if the holder fails to protect against trespassers for the statutory period.

Question 22

In terms of terminating an easement, what is a sale to a bona fide purchaser?

Answer 22

Sale to a Bona Fide Purchaser. An easement may be terminated if the landowner sells the property.

Question 23

In terms of terminating an easement, what is estoppel?

Answer 23

Estoppel. An easement is terminated if the landowner reasonably relies to his detriment on the easement holder’s assurance that the easement will no longer be used.

Question 24

In terms of terminating an easement, what is end of necessity?

Answer 24

End of Necessity. An easement by necessity lasts as long as the easement is necessary – if it is no longer necessary, the easement terminates.

Question 25

If I own A, and have an easement over B, and then gain life estate o’ship of B, does this end my easement?

Answer 25

No. If I had been given full title over B, then this would be a “merger” and easement would be terminated (and future owners of A, therefore, would not get the easement over B), but if just a life estate, no merger, and easement stays

(see Q 39 MBE Q’s folder)

Question 26

What is a profit (as opposed to an easement)?

Answer 26

A profit is a right to enter another’s land to remove a specific natural resource.

Question 27

What is a license (as opposed to an easement)?

Answer 27

A license is a revocable permission to use another’s land (e.g., a ticket to a music concert).

Question 28

Fixture

Answer 28

A fixture is tangible personal property (i.e., chattel) that is attached to real property in such a manner that it is treated as part of the real property when determining its ownership.

Question 29

When is a chattel considered a fixture?

Answer 29

Generally, a chattel is considered a fixture if the owner of real property intends for the chattel to become a fixture by attaching it to the real property. Such intent is judged by applying an objective, reasonable person standard that examines such factors as:

1. The importance of the chattel to the real property;
2. Whether the chattel was specially designed for use on the real property;

AND

3. The amount of damage that removal of the chattel would cause to the real property.

Question 30

If I am a tenant and I install standard-sized combination storm windows, freestanding refrigerator , built-in electric stove and carpeting to cover plywood, what of that is considered a fixture and what I take with me?

Answer 30

You can take all of it with you: none of it is firmly embedded; all of it is basically standard-sized and not designed specifically for the property; would not cause must damage; not important to the value of the real property.

Chattel here is NOT FIXTURE.

Question 31

Are structures built on real property treated as fixtures?

Answer 31

No. Structures built on real property (e.g., walls) and materials incorporated into a structure (e.g., bricks used in making a wall) become part of the real property. The owner of the real property is generally also the owner of any structures on the real property (including the materials incorporated into the structures).

Question 32

What is the right to “lateral support”?

Answer 32

One of the rights incident to land is the right to “lateral support.” That is, every landowner is entitled to have his land receive the necessary physical support from adjacent and underlying soil. The right to lateral support is absolute — that is, once support has been withdrawn and injury occurs, the responsible person is liable even if he used utmost care. However, the absolute right to later support exists only with respect to land in its natural state. If owner A has constructed a building, and the soil under the building subsides in part due to the acts of adjacent owner B, but also in part because of the weight of A’s building itself, B is not liable without negligence.

Question 33

If A sells to B a lot with no access to a public right-of-away, neither had ever seen the lot; did A breach warranty of marketable title?

If they close on the property; deed delivered and accepted; then B visits the property and sues for breach of warranty of marketable title, will B succeed?

Answer 33

Yes. Title not marketable if lot lacks access to a public right-of-way.

Nope. That is one of the present covenants that ends upon acceptance of the deed. Only the future covenants (aka the title covenants, which include superiority of title, seisin, right to convey, quiet enjoyment, and the general warranty) are available to B to sue on, and no road access does not breach any of those, so B can’t sue.

Question 34

One of the rights associated with a defeasible fee simple is the right

Answer 34

to remove minerals and other resources from the land. That right is not subject to any requirement to provide notice to or obtain permission from any other parties who hold an interest in the land.