Rights Flashcards
Covenants vs equitable servitudes
Covenants are contract law and breach leads to damages
Equitable servitudes are enforceable by equitable remedy, like an injunction
Implied reciprocal servitudes: when owner sells lots w restrictions benefitting them retained, they cannot violate that same restriction (benefits the land once sold, so neither party can violate)
Requirements for a covenant to run with the land: PINT
Privity: horizontal AND vertical
Intent: intend to run with land. IN WRITING - statute of frauds
Notice: successor in interest must have notice (can be constructive! was it recorded?)
Touch and concern: must be integrally related to the land itself
Remember: none of these are necessary for covenant to bind the first party. That’s just a contract!
Horizontal privity
The contractual relationship between the original covenantor and covenantee. Must have privity IN CONNECTION TO THE LAND - handshake between neighbors doesn’t cut it! Need a grantor and a grantee - covenant conditions grant of land.
Seller/landlord/mortgagor made buyer/tenant/mortgagee commit to the covenant
Vertical privity
Vertical privity means that ALL of the interest of the former interest-holder passes to the successor.
A sells fee simple to C: privity
A holds fee simple, leases for 5 years to C: no privity
Creation of equitable servitudes: INT
Intent Notice (actual, constructive, or inquiry) Touch and concern (benefit runs w dominant estate, burden with servient)
Remember: NO privity requirement for servitudes! that’s just covenants
Implied reciprocal servitudes
Look for filed declarations containing the restrictions - CC&Rs
Statute of Frauds does not apply because it’s impliable - no writing required
Negative restrictions ONLY
Often: COMMON SCHEME OR PLAN for development of the area
Terminating a covenant or servitude
Written release
Merger of the dominant and servient estates
Abandonment
Estoppel
Changed circumstances so original reason no longer valid
Easements: three part test
Was it properly created?
What is the scope?
Has it been terminated?
Easement appurtenant: benefits a parcel of land (dominant estate)
Easement in gross: benefits a person or entity (say, the power company)
Creation of easements
Expressly: writing. must satisfy statute of frauds
By implication: two kinds - implied by prior use, or by necessity
By prescription: adverse possession, basically. do it long enough openly
Easements by implication: three kinds
Implied by prior use: four requirements:
• Common ownership of the dominant and the servient estate, then severance;
• The use giving rise to the easement was in existence at the time of the severance;
• The use was apparent and could be discovered upon a reasonable inspection; and
• At the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract.
Easement by necessity: two requirements:
• Common ownership of the dominant and the servient estate, then severance; and
• Strict necessity for the easement at the time of severance.
Easement by plat: buyers in platted subdivisions automatically get implied easement to use streets, alleys, and parks in the subdivision
Scope of an easement
If an express easement states a particular use, that’s the only allowable one
Otherwise, can be used to the extent reasonably necessary
Holder can do what is reasonably necessary to maintain easement, even if it interferes with the servient owner
Termination of an easement: 3 kinds
Destruction of servient estate: terminates unless owner of servient estate intentionally caused the destruction
Based on the actions of the holder:
- merger of title (owner also acquires servient estate)
- written release
- abandonment of easement (need intent and affirmative act)
- estoppel (by servient owner’s reliance)
- severance: owner of easement severs it (improper to sever from the land - just terminates)
Based on actions of the servient owner:
- prescription: owner interferes with use of easement for some statutory time period
- servient estate is sold to a bona fide purchaser without notice of the easement
- end of necessity
Profits
A profit is a nonpossessory interest in land. Holder of the profit has the right to enter someone else’s land and remove something, such as logging trees of certain size
Created only expressly or by prescription. otherwise same analysis as easements
Termination: same as easements
Profits are TRANSFERABLE!
License
A license is a privilege to do something on someone else’s property. PERSONAL RIGHT, not interest in land
Can be oral, no SoF
Freely revocable at any time for any reason, EXCEPT:
- licenses coupled with interests in the property, or interests in some other property
- executed licenses (holder spent money or labor in reliance - irrevocable til value received)
Not transferable unless licensor intends
Terminate on death of licensor or conveyance of servient estate
Fixtures
Fixtures are chattels (personal property) that become attached to land. e.g. a furnace installed in a home becomes part of the home
Chattels become fixtures if “so necessary or convenient” to use of the land that it is regarded as part of it
Intent to annex a chattel with property is a question of fact, judged by reasonable person standard
However, a deed to the land transfers all fixtures unless parties agree otherwise
Mortgages cover all chattels on mortgaged land no matter when annexed
