Rights in Another's Land (Covenants, Easements, Licenses, Fixtures, and Zoning) Flashcards
1
Q
Running Covenants
A
A covenant that runs with the land is a promise that attaches to land. The covenantor promises to do (affirmative covenant) or refrain from doing something on his land (restrictive covenant).
2
Q
Restrictive Covenants v. Defeasible Fees
A
Do not get the two mixed up. A restrictive covenant involves a promise regarding the use of the land and is not the title itself.
3
Q
Elements for a Covenant to Run with Land (WIPTN)
A
Include:
- Writing
- Intent
- Privity
- Touch and Concern
- Notice
4
Q
Running Covenant Elements: Writing
A
The covenant must be in a writing that satisfies the SOF.
5
Q
Running Covenant Elements: Intent
A
- The covenant must include language that shows the parties’ intent for the covenant to run with the land.
- Covenant will typically state that covenantor promises “on behalf of himself and his heirs, successors, and assigns” to do or refrain from doing something on the land
6
Q
Running Covenant Elements: Privity
A
Can involve either horizontal privity or vertical privity.
7
Q
Horizontal Privity
A
The relationship that exists between the original covenantor and covenantee. Under the modern rule, horizontal privity is only required for the burden (to the land) and not for the benefit to run.
8
Q
Ways of Proving Horizontal Privity
A
- In most jurisdictions, the requirement is satisfied by a conveyance of land between the covenantee and covenantor, which occurs by the same deed that includes the covenant.
- Horizontal privity may also exist when the covenant is created in a lease or in the transfer of an easement.
9
Q
Vertical Privity
A
The relationship that exists between an original party to a running covenant and the successor in interest to the original party.
10
Q
Proving Vertical Privity
A
The P must show that the successor “stepped into the shoes of” the original party. For the burden to land, the holder of the servient estate must transfer the entire interest to the new owner. (If A received FSA and conveys to B, B must receive FSA). For the benefit to the land, the dominant estate holder can transfer all or part of his interest.
11
Q
Running Covenant Elements: Touch and Concern
A
A covenant must exercise direct influence on the occupation, use, or enjoyment of the premises. A benefit touches if it increases the value of the land. The burden touches if it decreases the value of the land.
12
Q
Running Covenant Elements: Notice
A
The parameters of notice are determined according to the terms of the relevant recording statute.
13
Q
Imposing the Burden of a Common Scheme: The First Lot With an Express Restriction
A
In the absence of an express restriction, the burden will not be imposed on a lot conveyed before the conveyance of the first lot with an express restriction.
14
Q
Imposing the Burden of a Common Scheme: Obvious Burdens
A
The burden of a common scheme will be imposed on lots, regardless of express restrictions, if a common scheme was evident at the time of conveyance of those lots.
15
Q
Termination of Covenants or Equitable Servitude
A
Include:
- merger
- written release
- abandonment
- estoppel
- changed circumstances.
16
Q
Covenants v. Equitable Servitudes
A
Covenants when breached lead to an award of damages. Breach of Equitable servitudes lead to the granting of an equitable remedy, such as an injunction.
17
Q
Equitable Servitude (TIN)
A
Is created with three elements:
- Touch and concern the land (the burden must run with servient estate while the benefit must run with the dominant estate)
- Intent- the writing must satisfy SOF
- Notice- the current owner of the servient estate took with notice (actual, constructive, or inquiry)
18
Q
Implied Reciprocal Servitude
A
Where one owner sells lots with restrictions that benefit the land retained by that owner, after which the owner cannot violate the same restriction. The restriction becomes mutual, benefits that owner’s land, and the land sold.
19
Q
Creation of Implied Reciprocal Servitude (CC&Rs)
A
- Look for a filed declaration containing the restrictions (covenants, conditions and restrictions)
- The SOF does not apply (since it is an implied right)
- Only applies to negative restrictions
20
Q
Implied Reciprocal Servitude: Common Scheme or Plan
A
One way to impose a reciprocal servitude is by showing a common scheme or plan. Restriction must be part of a common scheme or plan for dev. of the area and the current owner takes with notice of the restriction. An implied reciprocal servitude is imposed on any lot that does not contain the restriction if a common scheme was evident at the time of the conveyance of those lots.
21
Q
Important Factors to Show a “Common Scheme”
A
- A large percentage of lots expressly burdened (inquiry notice)
- Oral representation to buyers
- Statements in advertisements to buyers; or
- Recorded plat maps or other declarations.
22
Q
Enforcement of Implied Reciprocal Servitude
A
Includes:
- The original grantor
- Any purchaser affected by the common scheme; or
- A condo or subdivision association for common land conveyed to it.
23
Q
Termination of Covenants: Changed Circumstances
A
When the neighborhood or circumstances have changed so greatly that it no longer makes sense to enforce the restriction, the covenant will be terminated.
24
Q
Property Owner’s Associations in Regards to Restrictive Covenants
A
A property owner’s association generally has standing to enforce a restrictive covenant.
25
Easement
An interest in the land of another. Can be affirmative or negative. Can be appurtenant or in gross.
26
Checklist for Easements
- Was an easement ever properly created? (what type was it?)
- What is the scope of the easement?
- Has the easement been terminated?
27
Affirmative v. Negative Easements
- An affirmative easement gives the holder the right to do something on the land of another.
- A negative easement gives the holder the right to prevent a landowner from doing something on his land (writing is always required).
28
Easements Appurtenant v. Easements in Gross
An easement appurtenant has a dominant estate (land that is benefitted by the easement) and a servient estate (land that is burdened by the easement).
An easement in gross only contains a servient estate (e.g. public utility easement).
29
Methods of Creating Easements
Include:
- Writing
- Implication
- Prescription
30
Express Easement
A writing that complies with the SOF.
31
Implied Easement
An affirmative easement may be created by implication either by prior use, necessity, or plat.
32
Implied Easement by Prior Use
Requires:
- Severance of title to land held in common ownership &
- The use giving rise to the easement was in existence at the time of the severance
- The prior use must have benefited the other portion of the land
- The use was apparent and could be discovered upon a reasonable inspection
- At the time of the severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract.
33
Implied Easement by Necessity
Requires:
- Severance of title to land held in common ownership; and
- Strict necessity for the easement at the time of severance
- A showing of prior use is not required.
34
Implied Easement by Plat
A purchaser who acquires a lot in a platted subdivision will generally acquire an implied private easement to use any streets or alleys shown on the plat.
35
Prescriptive Easement
An affirmative easement may be created by prescription (adverse use) which requires proof that use is:
- open and notorious
- actual
- continuous (traditional period is 20 years)
- hostile
- exclusive (but the user can share the easement with the owner)
36
Prescriptive Easement v. AP of Title
Remember that a prescriptive easement does not equate to adverse possession of legal title to a piece of realty.
37
Things that Can Not Be Acquired Via a Prescriptive Easement?
One cannot claim the right use the light and air (think about the the AP elements).
38
Scope of an Easement
If the language creating a written easement limits its use, that language will be enforced. But if there is no limiting language use is only limited by reasonableness.
39
Surcharging the Easement
When an easement holder overuses the easement (either by violating the terms or going beyond what is reasonable).
40
Remedies for Surcharging the Easement
The holder of the servient estate can sue for an injunction or damages. However, the easement itself will not terminate.
41
Repair and Maintenance of Easements
A dominant estate holder has a right to repair and maintain an easement. Incident to this right is the right to enter the servient estate.
42
Damages During Repair and Maintenance?
A servient estate owner has a right to reasonable compensation for any damage done in the repair of an easement (but watch out for work that is reasonably necessary or unavoidable to repair the easement).
43
Profit a Prendre
A nonpossessory interest in land where the profit holder has the right to take (or remove) resources from the landowner. E.g. soil, timber, minerals, etc. Can only be created expressly or by prescription.
44
Licenses
A privilege to do something on someone else's property. Neither a writing nor consideration is required to create a license.
45
Creation or Termination of Licenses
Licenses can be oral (no SOF analysis) but they are also freely revocable at any time, for any reason.
46
Transferring an Easement Appurtenant (When the Dominant Estate is Transferred )
The benefit of an easement follows the transferred estate even if the deed of conveyance does not mention it (same thing for a profit appurtenant)
47
Two Exceptions to the Revocability of Licenses
Licenses are irrevocable if:
- (License Coupled with an Interest)- licensee purchases PP that is located on the licensor's property and is given permission to come onto the land to claim that property (e.g. permission to come onto a farmer's land to remove crops you have bought).
- (Executed License)- licensee expends money or labor in reliance on the license (license is irrevocable until person gets value out of the expenditure).
48
Transferring an Easement in Gross
Traditionally could not be transferred. However, under the modern approach, an easement in gross can be transferred if the easement holder intends to make a transfer + the easement is commercial in nature.
49
Transferring an Easement Appurtenant (Transferring the Servient Estate)
When there is an express easement, transfer of the servient estate will result in an accompanying transfer of the burden, as long as the dominant estate owner has complied with the provisions of the relevant recording statute.
50
Transferring Profits
All rules governing the alienation (transfer) of easements are applicable to profits.
51
Transferring Licenses
Because a license is personal, it is not transferable unless the licensor so intends.
52
Termination of Easements Based on the Actions of the Easement Holder
- Expiration of the easement term
- Written release by dominant estate owner
- (Merger of Title)- when the dominant and servient estates come into common ownership (must have complete ownership (fee simple))
- Abandonment
- Estoppel
- Severance (dominant estate holder for an easement appurtenant tries to sever easement from dominant estate)
53
Termination of Easements Based on the Actions of the Servient Estate
- (Prescription)- the owner of the servient estate interferes with the use of the easement for the statutory period.
- (BFP)- the servient estate is sold to a bona fide purchaser (pays value and takes without notice)
- (End of Necessity)- for an easement created by necessity, the easement ends when the necessity ends
54
Terminating Easements: Abandonment
Abandonment requires proof of:
- Intent to abandon (can be inferred from non-use); and
- An affirmative act in furtherance of the intent.
55
Terminating Easements: Estoppel
Estoppel requires proof of:
- An act or representation in respect to the easement
- Justifiable reliance on that act or representation; and
- Damages
56
Terminating Easements: Bona Fide Purchasers
A bona fide purchaser provides value without notice and satisfies the requirements of the recording statute will take the servient estate free of the easement.
57
Termination of Licenses
A license expires on the death of the licensor or the conveyance of the servient estate.
58
Fixtures
Chattel (PP) that has become so connected to RP that it is considered a part of the realty.
59
Factors for Determining if Chattel has Become a Fixture
- Annexation
- Appropriation for the use of land
- (Intent)- the annexor intends it to be a fixture
60
Fixture Factors: Annexation
Chattel may be deemed annexed to the land if:
- It is permanently attached to realty or something akin to realty
- It would be difficult to move solely based on its own weight
- It is constructively annexed to the property by being specially designed for the property or a fixture on the property
61
Fixture Factors: Appropriation
An annexed chattel may become a fixture if the chattel is so necessary or convenient to the use of the land that it is commonly regarded as part of the land.
62
Fixture Factors: Intent
Intent to create the fixture is a question of fact. Important factors include: the nature of the chattel, the degree of annexation, and the appropriateness of the chattel.
63
Transfer of Fixtures
When both the fixtures and realty are owned by the same person, a deed to the realty will transfer all of the fixtures on the property (unless there is a different agreement between the parties).
64
Fixtures in the Context of Mortgages: What happens when a chattel owner affixes it to realty that later becomes encumbered by a mortgage?
The fixture is included with the mortgage.
65
Fixtures in the Context of Mortgages: What happens if a chattel owner affixes chattel to realty already encumbered by a mortgage?
The fixture becomes a part of the mortgage.
66
Severance of Fixtures
If the fixture and the realty to which it is attached are subject to common ownership, the owner is free to sever the chattel physically and permanently from the premises. In such a case the fixture becomes PP again.
67
Trade Fixture
A chattel annexed to land by a tenant to advance his business or trade during his tenancy (does not become a part of the owner's realty).
68
Removing Trade Fixtures
During a tenancy, a tenant is free to remove a trade fixture but will have to pay for the damage that is caused by removal. However, traditionally, the trade fixtures must be removed before the end of the tenancy term or else they will become a part of the realty (although most courts now reject this rule and give reasonable time after termination date to remove trade fixtures).
69
Zoning
The power to zone (created by statute) gives a political subdivision the ability to divide its geographical areas into zones where some uses are permitted and other uses are prohibited.
70
Common Zoning Classifications
Include:
- residential
- commercial
- agricultural
- industrial
- spatial
- mixed-use
71
Purpose of Zoning Ordinances
Zoning ordinances must promote the public health, safety, prosperity, morals, and welfare because the ordinances arise from the state's police power.
72
Uniformity Requirement for Zoning Ordinances
Zoning ordinances must be uniform for each class or kind of buildings and uses throughout each district, but the regulations in one district may differ from those in other districts.
73
Scope of Zoning Ordinances
The appropriate political subdivision may regulate:
- The use of land, buildings, and structures
- The size, height, area, location, construction, repair, and removal of structures
- The areas and dimensions of land, water, and air space to be occupied and open spaces to be left unoccupied
- The excavation or mining of soil or other natural resources
74
Enforcement of Zoning Ordinances: Notice
When a property is found to be out of compliance with the zoning code, the political subdivision will issue the property owner a Notice of Zoning Violation.
75
Enforcement of Zoning Ordinances: Cease and Desist
A notice of zoning violation may contain instructions to cease and desist from a certain use, or instructions on how to modify the property to bring it into compliance.
76
Enforcement of Zoning Ordinances: Civil Fines
A Notice of Zoning Violation usually recites that civil fines will be owed if compliance is not achieved by the deadline set in the notice. It is a common practice for fines to accumulate daily until compliance is achieved.
77
Enforcement of Zoning Ordinances: Criminal Misdemeanor
In some jurisdictions, zoning violations can also be prosecuted as criminal misdemeanors, if left uncorrected.
78
Enforcement of Zoning Ordinances: Recording
Some state laws provide that zoning violations that are not corrected by deadline contained in Notice of Zoning Violation will be recorded, therefore, potential buyers of the property or lenders are aware of the zoning violation.
79
Enforcement of Zoning Ordinances: Notice of Right to Challenge
The Notice of Zoning Violation must include information on how to protest the notice by appealing to the local board of zoning appeals. If relief is not granted, an appeal to a court must be provided.
80
Enforcement of Zoning Ordinances: Landlord Liability
The property owner is always liable for civil zoning violations, whether committed by the owner or a tenant or other occupier. However, the landlord cannot be guilty of a criminal misdemeanor for a tenant's violation (because the intent element is not satisfied).
81
Enforcement of Zoning Ordinances: Tenant Liability
In most jurisdictions a tenant or other occupier who is committing the violation is also liable.
82
Constitutionality of Zoning Ordinances: DP Clause of 14th Amendment
Requires both procedural and substantive due process.
83
Constitutionality of Zoning Ordinances: Procedural DP
Procedural DP requires notice and a fair hearing, meaning an opportunity to be heard by a neutral decision-maker (local board of zoning appeals or other admin board). If the P does not receive relief, an appeal to the courts must be permitted.
84
Constitutionality of Zoning Ordinances: Substantive DP
A zoning ordinance violates substantive DP if it is arbitrary and capricious, meaning that it is not reasonably related to public health, welfare, or safety.
85
Constitutionality of Zoning Ordinances: EP
The EP Clause might be implicated if a zoning ordinance treats similarly situated people differently. However, if there is no fundamental right or suspect class, the rational basis test will be used (ordinance just needs a rational relationship to a legitimate government interest).
86
Rezoning
If rezoning by the political subdivision is inconsistent with a comprehensive plan for that area, then it must be based on a change of conditions in the land, neighborhood, environment, or public opinion.
87
Nonconforming Use
A use permitted by zoning statutes or ordinances to continue, notwithstanding the fact that similar uses are not generally permitted in the area (when a parcel of land is given an exception).
88
Subsequent Changes to a Nonconforming Use
Generally, a nonconforming use cannot be expanded, rebuilt after destruction, or enlarged. Although, owners are entitled to make reasonable alterations to repair their facilities and render them practicable for their purpose.
89
Amortization of Nonconforming Uses
Some local ordinances require certain nonconforming uses to be amortized (reduced) over a specified period, at the end of which they must be terminated.
90
Zoning Variance
Permission by the local zoning authority to use property in a manner forbidden by the zoning ordinances in order to alleviate conditions peculiar to a particular parcel of land.
91
Area Restriction Variances
P must show that there are practical difficulties or that the requirements are unreasonable or create an undue hardship (no viable use of property).
92
Use Restriction Variances
A P must show undue hardship (no viable use of the property).
93
Special Use Permit
A P asks for a permit for use in an area not zoned for that use, arguing that it would be beneficial to the public welfare and compatible with the area. A P is entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners.
94
Conditional Use Permit
When P applies for a permit to use property in an area not zoned for those uses but would be beneficial to the public welfare, and agrees to certain conditions.
95
Spot Zoning
When a parcel or small area may be zoned for a use or structure that is inconsistent with the rationale of the overall plan or ordinance. Is illegal for private interests but permissible if the purpose is to further the public welfare.
96
Exaction
An approval of use in exchange for money or a dedication of land.
97
Requirements to Grant an Exaction
Local government must show that:
- The increased public need is causally related to the owner's use
- The amount of the exaction is approximately equal to the additional public cost imposed by the use
