Rights in Land

Question 1

What are the requirements for an implied easement by prior use? (DACRI)

Answer 1

(1) division of a prior tract of land held in common ownership;
(2) an apparent and continuous use of the easement while it was in common ownership; and
(3) the use is reasonably necessary for the enjoyment of the dominant estate

Question 2

What are the requirements for an implied easement by necessity?

Answer 2

(1) division of a prior tract of land held in common ownership;
(2) strict necessity for the easement at the time of division

Question 3

What are the requirements of an easement by prescription?

Answer 3

The holder’s use of the easement has been open and notorious, actual, hostile, (exclusive), and continuous for the statutory period of 20 years. FL doesn’t require exclusivity.

Question 4

What are the requirements of an express easement?

Answer 4

Writing signed by the holder of the servient estate that gives an easement to the owner of the dominant estate.

Question 5

How is a covenant terminated? (MR ACE)

Answer 5

(1) merger of dominant and servient estates;
(2) written release;
(3) abandonment;
(4) changed circumstances of the neighborhood; or
(5) estoppel

Question 6

How is an easement terminated? (MR CAPEEENDS)

Answer 6

(1) merger of dominant and servient estates;
(2) written release by dominant estate holder;
(3) changed circumstances;
(4) estoppel;
(5) eminent domain;
(6) expiration of easement;
(7) end of necessity;
(8) destruction of servient estate;
(9) servient estate sold to BFP

Question 7

What is an easement appurtenant?

Answer 7

Easement that entitles the dominant estate owner to use the servient estate’s land for their benefit. Attaches to the dominant estate and runs with the land.

Question 8

What is an easement in gross?

Answer 8

Easement that entitles an individual or entity (not a dominant landowner) to use the servient estate for a personal or commercial benefit. Doesn’t attach to the land. Similar to a license, but it’s irrevocable. May be transferred.

Question 9

What are the 4 ways to create an easement?

Answer 9

(1) prescription;
(2) implied by prior use;
(3) necessity;
(4) express grant

Question 10

What is the scope of an easement?

Answer 10

Scope is limited by the terms and conditions that created it. Otherwise, it can be used to the extent reasonably necessary to the dominant estate.

Question 11

How is a covenant created? (PINT)

Answer 11

Must be written to satisfy SoF. Must have:

(1) Horizontal privity
(2) Vertical privity
(3) Intent by the parties to create a covenant;
(4) Covenant must touch and concern the land
(5) Notice (current owner of the servient estate must take with notice of the covenant)

Question 12

How is an implied reciprocal servitude created? (CCR)

Answer 12

Created by filing a covenant, condition, and restriction before any lots are sold

Question 13

What is an implied reciprocal servitude?

Answer 13

When an owner of 2 or more lots sells 1 lot with restrictions that benefit the unsold lot, the servitude becomes mutual and the owner of the unsold lot can’t do anything he forbid the owner of the sold lot from doing

Question 14

What is an equitable servitude?

Answer 14

Plaintiff is seeking equitable relief (i.e. an injunction). Still a covenant, but more relaxed that one that runs with the land. Doesn’t require privity because it doesn’t run with the land.

Question 15

What is a covenant that runs with the land?

Answer 15

Promise that attaches to the land. Mostly negative in nature. When breached, covenants lead to an award of damages.

Question 16

What is a profit?

Answer 16

Non-possessory interest in land. The holder can go onto the land and take something off of it.

Question 17

How is a profit created?

Answer 17

Expressly or by prescription

Question 18

How is a profit terminated? (MR CAPENDS)

Answer 18

Merger, release, changed circumstances, abandonment, prescription, estoppel, end of necessity, destruction of the servient estate, or servient estate sold to a BFP

Question 19

Is a profit transferrable?

Answer 19

Yes

Question 20

What is a license?

Answer 20

A privilege to do something on someone else’s property. Doesn’t give an interest in the land - only personal right.

Question 21

Does a license have to satisfy the SoF?

Answer 21

No, can be oral

Question 22

What is the revocability of a license?

Answer 22

Freely revocable except in two circumstances:

(1) license couple with an interest (ex. licensee purchases personal property located on the licensor’s property and has permission to go and get it);
(2) executed license (where the licensee expends $$ or labor on the license - the license isn’t revocable until the licensee gets value out of it)

Question 23

What is a fixture?

Answer 23

Item of personal property that has been affixed to the land. A chattel becomes a fixture if it becomes so necessary or convenient to the land that it’s regarded as part of the land. Intent to attach a chattel is a question of fact judged by a reasonable person standard. When the chattel and land are owned by the same person, a deed to the land transfers all fixtures on the property, unless the buyer and seller agree otherwise.

Question 24

How do fixtures work for landlord/tenant?

Answer 24

A tenant installation qualifies as a fixture if there’s an express agreement between the landlord and tenant. If there’s no agreement, the tenant can remove the fixture as long as it doesn’t cause substantial harm to the property.

Question 25

What is zoning?

Answer 25

Gives political subdivisions authority to divide geographic zones where uses are permitted or not permitted

Question 26

Where does the authority to zone come from?

Answer 26

Granted by state statute from the state to cities/counties/etc. Ordinance must conform with the enabling act, otherwise it’s ultra vires.

Question 27

What is the scope of zoning ordinances?

Answer 27

Zoning regulations can regulate:

(1) use of land, buildings/structures;
(2) size, height, area, location, construction, repair, and removal of statutes;
(3) areas and dimensions of land, water, and air space to be occupied;
(4) Excavation of mining of soil/natural resources

Question 28

How is zoning enforced?

Answer 28

When property is out of compliance, you get a Notice of Zoning Violation. It may contain a cease and desist for a certain use or instructions on how to bring the property into compliance or cure the violation. Notice must include info on how to challenge the notice with the Board of Zoning Appeals. If relief isn’t granted, they must provide appeal to the Circuit Court.

Question 29

Following a Notice of Zoning Violation, what happens if the owner doesn’t protest the notice or cure the violation?

Answer 29

If the owner doesn’t protest the notice and doesn’t bring it into compliance, the political subdivision can:
(1) obtain a court-ordered injunction;
(2) apply civil fines until compliance is reached;
require the zoning violation to be recorded to put future buyers on notice

Question 30

What are the procedural due process limitations of zoning?

Answer 30

PDP requires notice and a hearing. On appeal to the board of zoning appeals or other admin board, there is a public hearing.
When a property owner requests a variance from the zoning code, he gets a public hearing that should be noticed to all parties that may have an interest in the property receiving the interest (i.e. neighboring property owners).
On appeal to the Circuit Court, the court reviews the administrative decision to see if it was illegal, arbitrary, capricious, or unsupported by a preponderance of the evidence

Question 31

What are the substantive due process limitations of zoning?

Answer 31

A zoning ordinance violates SDP if it’s arbitrary and capricious, meaning not reasonably related to public health, welfare, or safety.

Question 32

What are the equal protection imitations of zoning?

Answer 32

SDP = if similarly situated people are treated differently. If there’s no fundamental right implicated and no suspect classifications, apply rational basis

Question 33

What are the first amendment limitations on zoning?

Answer 33

Zoning ordinance may be subject to a First Amendment challenge if it regulates billboards or aesthetics

Question 34

What are the 5th Amendment limitations to zoning?

Answer 34

5th A = private property shall not be taken for public use without just compensation (applies to the states via the 14th Amendment).
A land use regulation is a “taking” if it denies the owner all reasonable, economically beneficial uses of their land.

Question 35

What is the balancing test to determine if a zoning regulation is a taking or just decreases economic value?

Answer 35

Court looks at:

(1) economic impact of the regulation;
(2) extent to which the regulation has interfered w/ investment-backed expectations; and
(3) the character of the government action

Question 36

What is a nonconforming use?

Answer 36

A use permitted by zoning statutes to continue, despite similar uses not being permitted in the area. Usually comes from long-standing use and a new law changes the land use permissions.

Question 37

What is a variance?

Answer 37

Permission from the zoning board to use the property in a manner forbidden by the zoning ordinances in order to alleviate conditions peculiar to a particular parcel of property.
If sought from an area restriction, must show there are practical difficulties in meeting the requirements or that requirements are unreasonable/create undue hardship
If sought from use restriction, must show undue hardship and that without the use variance, there’s no viable use of the property

Question 38

What is a special use permit?

Answer 38

Required for uses in an area not zoned for those uses, but which would be beneficial to the public welfare and compatible with the area. Applicant is entitled to a public hearing.

Question 39

What is spot zoning?

Answer 39

A parcel/small area may be zoned for a use/structure inconsistent with the rationale of the overall plan or ordinance. Illegal when the zoning ordinance is designed solely to serve the private interests of one or more landowners. Permissible if the purpose is to further the welfare of the entire political subdivision.

Question 40

What is an exaction?

Answer 40

Approval of use in exchange for $$ or a dedication of land. Permissible only if:

(1) the local government can demonstrate that the increased public need is causally related (i.e. has an essential nexus) to the owner’s use and
(2) the amount of the exaction is approximately equal to the additional public cost imposed by the use (i.e. has a rough proportionality to the use)

Question 41

What is horizontal privity?

Answer 41

Privity between the original parties to the contract

Question 42

What is vertical privity?

Answer 42

Privity between one of the original parties to the contract and their successor in interest

Question 43

What does it mean for a covenant to touch and concern the land?

Answer 43

The covenant must exercise direct influence on the land. Burden touches if it reduces the use and enjoyment of the servient estate.
Benefit touches if it increases the use and enjoyment of the dominant estate.