Rights in Land Flashcards
Easement
- The right to use someone else’s land, can be a positive or negative easement
Creation of an Easement:
- through Writing
- By Prescription
- By Implication
- By Necessity
how long does an easement last?
An easement will last FOREVER, unless
terminated
Easements are terminated by:
- Agreement
- Time
- Merger
- Abandonment
What is not enough for adandonment?
Non-use is not enough for abandonment
Covenants:
A promise to do or refrain from doing something related to land, can have affirmative or restrictive covenants
- Promise for a promise
- Always created by writing
- Generally last forever
A Covenant “runs with the land” if:
subsequent owners may be burdened by the covenant or may enforce it
to be enforceable, Requires:
1) Writing
2) Intent to bind successors
3) successor had Notice
4) Privity (horizontal and vertical)
5) Touches & Concerns the land
Equitable Servitude:
a covenant that will be enforced against successors of the burdened land who have notice of the covenant (i.e., injunction is the remedy)
- Privity is not required to bind successors*
- Looks like a Restrictive Covenant
- Seek equitable relief: Injunction
Implied Reciprocal Servitude:
- If land is subdivided into parcels under a common development scheme, with only some parcels having negative servitudes, these restrictions may be impliedly binding against all subdivided parcels
Reqs:
* * Common Scheme & Notice
Implied reciprocal servitude req: (1/2): Common Scheme
Common scheme—developer evidenced intent to create a negative servitude under a common scheme for all subdivided parcels
Common scheme may be evidenced through:
1. Recorded plat,
2. General pattern of restrictions, and/or
3. Oral representations to early buyers
Implied reciprocal servitude req: (2/2) Notice
Notice may be one of three types:
* Actual—literal knowledge of restriction,
* Inquiry—neighborhood character indicates a common restriction, or
* Record—chain of title for the owner’s lot includes a prior deed containing a negative covenant/servitude
License
- Right to enter
- Freely revocable by grantor
- UNLESS coupled with an interest
Example:
o If you are causing a problem at a stadium, they
have a right to kick you out
Profit
- Right to enter the land & take something off the land
Elements of a Taking:
- Government taking private property for “public use” (public use is a very broad definition)
- Requires “just compensation”
Water Rights:
Land bordering watercourses (natural or artificial bodies of water, e.g., lakes and rivers) is governed by either the riparian doctrine or the prior appropriation doctrine
Riparian doctrine
Riparian doctrine — water belongs to those who own land bordering the watercourse. Two theories:
- Reasonable use theory (majority) — riparian owners share rights to reasonable use and are liable to other owners if their use unreasonably interferes with other owners’ use
* Balance utility of use vs. gravity of harm - Natural flow theory (minority) — riparian owners may be enjoined for any use resulting in a substantial or material reduction in others’ water quantity, quality, or velocity
- Under both theories, natural uses (e.g., household use) prevail over artificial uses (e.g., for manufacturing or irrigation)
Prior appropriation doctrine
E.g., first individual to make a beneficial use of water (i.e., productive use) has superior legal right to its use
Crops:
- Generally go with the property
- Natural: “real property”
- Man-made: “personal property”
Crops - Exceptions:
- Express agreement
- Tenant with right to harvest
Adjoining Undeveloped Property:
- Strict Liability for damage
Adjoining Developed Property:
- Strict Liability if damage would have
happened anyway - Or else negligence
Digging on Adjoining Land:
- Negligence for damage`
Private Nuisance:
- Unreasonable interference with use &
enjoyment - Reasonable person standard
Public Nuisance:
Public Nuisance:
* Affects public at large
* Private plaintiff must prove special damages
