Rights in Land

Question 1

Covenants that Run with the Land: Covenants & List for Creation

Answer 1

Creation: For a covenant to run with the land, the following elements must be met (mnemonic:
PINT):
-Privity (horizontal & vertical)
-Intent
-Notice
-Touch and Concern the Land

Question 2

Covenants that Run with the Land: Covenants

Privity

Answer 2

(a) Horizontal Privity = The relationship between the original covenant or and covenantee
(i) Requires privity of contract in connection with the land (e.g., Landlord/tenant, grantor/ grantee, mortgagor/mortgagee)

(b) Vertical Privity = The relationship between an original party and the successor in interest to the original party (privity of estate)
(i) In order for the burden to run, privity of estate will only exist when the holder of the servient estate transfers all of his interest in the servient estate to the new owner

Question 3

Covenants that Run with the Land: Covenants

Intent

Answer 3

The writing (Statute of Frauds applies) must include language that shows the parties’ intent for the covenant to bind successors in interest

Question 4

Covenants that Run with the Land: Covenants

Notice

Answer 4

The current owner of the servient estate must take with notice of the restriction (requirement on servient side only)

Question 5

Exam tip

Answer 5

The Statute of Frauds requires that all promises made for the purchase and sale of real property must be in writing to be enforceable. Remember to check for Statute of Frauds issues anytime you see transactions involving real estate or interests in real property created or transferred for example, by a covenant or easement, on the bar exam.

Question 6

Covenants that Run with the Land: Covenants

Touch and Concern the Land

Answer 6

(a) Servient Estate: The restriction must reduce the use and enjoyment of the servient estate
(b) Dominant Estate: The restriction must increase the use and enjoyment of the dominant estate

Question 7

Covenants: Equitable Servitudes

Creation: TIN

Answer 7

(1) Touch and Concern the Land
(a) The burden must run with the servient estate; the benefit must run with the dominant estate

(2) Intent
(a) The writing (Statute of Frauds applies) must include language that shows the parties’ intent for the restriction to run with the land and bind future landowners

(3) Notice
(a) Current owner of the servient estate took with notice

Question 8

Covenants: Implied Reciprocal Servitude

Answer 8

i) Creation: look for a filed declaration containing the restrictions (CC&R’s). Negative restrictions only
ii) Statute of Frauds does not apply - no writing requirement because it can be implied

iii) One way to impose a reciprocal servitude is by showing a common scheme or plan
(1) Factors to show “common scheme”: a large percentage of lots expressly burdened; oral representations to buyers; statements in advertisements to buyers; or recorded plot maps or other declarations
(2) Current owner of the servient estate takes with notice of the restriction

Question 9

Ways to Terminate a Covenant or Equitable Servitude

Answer 9

i) May be terminated by: written release; merger of the dominant and servient estates; abandonment; estoppel, or changed circumstances so that the reason behind the restriction is no longer valid

Question 10

Easements: Servient Estate

Answer 10

The estate that is burdened by the easement (must always have a servient estate)

Question 11

Easements: Dominant Estate

Answer 11

The estate that is benefited by the easement (do not always have to have a dominant estate)

Question 12

Easement Appurtenant

Answer 12

Benefits a parcel of land; the dominant estate

Question 13

Easement in Gross

Answer 13

Benefits a person or entity rather than a piece of land (no dominant estate)

Question 14

Creation of Easements Generally

Answer 14

Can be created expressly, by implication, or by prescription

Question 15

Creation of Easements

Expressly

Answer 15

A writing must satisfy the Statue of Frauds

Question 16

Creation of Easements

By Implication: “Prior Use” 4 requirements

Answer 16

(four requirements):
(a) Severance of title to land held in common ownership;

(b) The use giving rise to the easement was in existence at the time of the severance;
(c) The use was apparent and could be discovered upon a reasonable inspection; and
(d) At the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract

Question 17

Creation of Easements

By Implication: “Easement by Necessity” 2 requirements

Answer 17

(a) Common ownership of the dominant and the servient estate, then severance; and
(b) Strict necessity for the easement at the time of severance

Question 18

Creation of Easements

By Implication: “Easement by Plat”

Answer 18

A buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision

Question 19

Creation of Easements

By Prescription (Adverse Possession)

Answer 19

If someone actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period

Question 20

What is the scope of easements?

Answer 20

i) If an express easement states a particular use, then that is only allowable use. Apart from that, an easement can be used to the extent that it is reasonably necessary to do so
(1) “Surcharging the easement” = going beyond what is reasonable
(a) This does not terminate the easement; however, the servient estate can sue for an injunction or damages

ii) The holder of the easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner’s use of their property

Question 21

Ways to Terminate an Easement (3)

Answer 21

• Destruction of the Servant Estate
• Termination Based on the Actions of the Easement Holder
• Termination Based on Actions of the Owner of the Servient Estate

Question 22

Ways to Terminate an Easement

Destruction of the Servant Estate

Answer 22

Generally, destruction of the servient estate will terminate an easement unless the owner of the servient estate intentionally caused the destruction

Question 23

Ways to Terminate an Easement

Termination Based on the Actions of the Easement Holder

Answer 23

(1) Merger of Title: Occurs when the owner of the dominant estate also acquires the servient estate
(2) Written Release: Expressly terminates the owner’s rights in the easement (must satisfy the Statute of Frauds)
(3) Abandonment: Requires proof of intent to abandon and an affirmative act in furtherance of the intent
(4) Estoppel: The owner of the servient estate foreseeably and detrimentally relies on the holder’s action/abandonment
(5) Severance: The owner of the dominant estate tries to sever the easement from the dominant estate (only arises with easements appurtenant)

Question 24

Ways to Terminate an Easement

Termination Based on Actions of the Owner of the Servient Estate

Answer 24

(1) Prescription: The owner of the servient estate interferes with the use of the easement for the statutory period
(2) The Servient Estate is Sold to a Bona Fide Purchaser: Pays value and takes without notice
(3) End of Necessity: For an easement created by necessity, the easement ends when the necessity ends

Question 25

Profits

Answer 25

a) The holder of the profit has the right to go on someone else’s land and take something off of it
b) Creation: Can only be created expressly or by prescription (analysis is otherwise the same as easements)
c) Termination: Same as easements

Question 26

Licenses

Answer 26

a) A license is a privilege, usually to do something on someone else’s property—i.e., go on the land. This is a personal right, not an interest in the land

b) Licenses are freely revocable at any time, for any reason, unless the license is:
i) Coupled with an Interest; or
(1) The licensee purchases personal property that is located on the licensor’s property and is given permission to come onto the land to claim that property
ii) Executed
(1) The licensee expends money or labor in reliance on the license; license is irrevocable until the person gets value out of the expenditure

c) Licenses are not transferable unless the licensor so intends
d) Licenses terminate on the death of the licensor or the conveyance of the servient estate

Question 27

Fixtures

Answer 27

a) A fixture is a chattel (personal property attached to the land)
b) A chattel becomes a fixture if it is owned by the landowner and is so necessary or convenient to the use of the land that it is regarded as part of the land
c) The intent to annex a chattel is a question of fact (judged by reasonable person standard)
d) A deed to the land transfers all fixtures, unless buyer and seller agree otherwise
e) A mortgage covers the land and all its chattels

Question 28

Zoning

Answer 28

a) Authority: Power to zone granted by statute
b) Classifications (residential, commercial, agricultural, industrial, spatial, and mixed-use)
c) Scope: Regulations may regulate, restrict, permit, prohibit, and/or determine:
i) Use of land, buildings, and structures;
ii) Size, height, area, location, construction, repair, and removal of structures;
iii) Areas and dimensions to be occupied/left unoccupied; or
iv) Excavation or mining of soil or other natural resources

Question 29

Zoning Enforcement

Answer 29

Notice of Zoning Violation: When property is out of compliance with zoning code
(1) Cease and Desist – Instructions to cease and desist from certain use, how to modify to bring property into compliance, or cure the violation

(2) If property owner does not protest the notice and does not bring property into compliance, the political subdivision may:
(a) Obtain injunction to enforce the notice;
(b) Apply civil fines until compliance achieved; or
(c) Require zoning violation be recorded to alert potential buyers (some states)

(3) Challenges: Notice must include information on how to appeal

(4) Tenants and Occupiers: Property owner is always liable for civil zoning violations whether committed by owner, tenant, or other occupier. In most jurisdictions, the tenant or other occupier committing the violation is also liable
(a) Owner is not liable for a criminal misdemeanor committed by tenant or occupier

Question 30

Constitutional Limits on Zoning

Answer 30

i) Procedural Due Process: Requires notice and opportunity to be heard
ii) Substantive Due Process: Zoning ordinance violates substantive due process if it is arbitrary and capricious
iii) Equal Protection: Zoning ordinance may give rise to an equal protection challenge if similarly situated people are treated differently
iv) First Amendment: Zoning ordinance may be subject to First Amendment violation if it regulates billboard or aesthetics

v) Fifth Amendment Takings
(1) A land-use regulation is a taking if it denies an owner all reasonable, economically beneficial uses of the land
(2) Balancing Test:
(a) Economic impact of the regulation;
(b) Extent regulation has interfered with distinct investment-backed expectations; and
(c) Character of government action

Question 31

Rezoning and Other Zoning Changes: Rezoning

Answer 31

If rezoning 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
(1) Rezoning of a particular piece of land is quasi-judicial and requires procedural due process. A broader rezoning is legislative

Question 32

Rezoning and Other Zoning Changes: Nonconforming Use

Answer 32

A use permitted by zoning statutes or ordinances to continue, notwithstanding the fact that similar uses are not generally permitted in the area

 (1) A nonconforming use may not be expanded or rebuilt after substantial destruction
 (2) Local ordinances often prohibit the enlargement, alteration, or extension of a nonconforming use

Question 33

Rezoning and Other Zoning Changes: Variances

Answer 33

Permission by the local zoning authorities to use property in a manner forbidden by the zoning ordinances in order to alleviate conditions peculiar to a particular parcel of property

   (1) Area Restriction: Petitioner must show that there are practical difficulties in meeting the requirements of the zoning code or that the requirements are unreasonable or create an undue hardship
 (2) Use Restriction: Petitioner must show undue hardship, meaning that, without a use variance, there is no viable use of the property

Question 34

Rezoning and Other Zoning Changes: Special Use Permits:

Answer 34

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

Question 35

Rezoning and Other Zoning Changes: Conditional Use Permits

Answer 35

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 if certain conditions are met.
Granted only if the applicant agrees to meet the additional conditions

Question 36

Rezoning and Other Zoning Changes: Spot Zoning

Answer 36

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
(1) Illegal when the zoning ordinance is designed solely to serve the private interests of one or more landowners

Question 37

Rezoning and Other Zoning Changes: Exactions

Answer 37

An approval of use in exchange for money or a dedication of land

(1) Permissible only if:
(a) 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
(b) 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 38

Support Rights: Lateral Support

Answer 38

i) General Rule: A landowner has an absolute right to lateral support; therefore, if the adjoining landowner fails to provide lateral support, the adjoining landowner will be strictly liable for any damages suffered
ii) If the land has been improved, you should ask yourself the following question: Would the property have subsided anyway, or was it the weight of the improvement that caused the land to subside?
(1) If the land would have subsided anyway (due to its natural state)—remains strictly liable
(2) If the weight of the improvement caused the land to subside, the adjoining landowner is liable only if there was negligence in depriving the neighboring property of lateral support

Question 39

Support Rights: Subjacent Support

Answer 39

General Rule: The right of support extends to:

(1) Land in its natural state; and
(2) Buildings existing on the date when the subjacent estate was severed from the surface
ii) However, the underground landowner is liable for damages to subsequently erected buildings only if he or she is negligent

Question 40

Water Rights: Riparian View (Majority)

Answer 40

Anyone who is within the watershed (touches the lake or stream) has a right to make reasonable use of the water

Question 41

Water Rights: Prior Appropriation/ Use View (Minority)

Answer 41

Awards the right to use the water to the first person to take the water for beneficial purposes

Question 42

Water Rights: Diffuse Surface Water

Answer 42

i) Common Enemy Rule (Eastern states): Flood water can be diverted by any method onto another’s land
ii) Civil Law Rule (Western states): No interference with any surface water is allowed
iii) Reasonable Use Rule: Surface water can be diverted onto another’s land if using reasonable means to do so