Rights in Land Flashcards
What are the natural rights incidental to land ownership?
An owner of real property has the exclusive right to the usage and possession of:
- the surface of the property
- the soil
- the airspace above property
What is the “right to lateral support of land?”
The right to receive physical support from adjacent soil
This right is absolute and an adjacent landowner that uses care may be liable
*example of lateral support are retaining walls after excavating an adjoining parcel
What are the 2 approaches to water rights in the US?
1.Riparian Doctrine: owners of land contiguous to a stream or lake may make reasonable use of the natural flow of that water
- Prior Appropriation Doctrine: water rights are determined by the priority of appropriation of the water
What is the Riparian Doctrine for water rights?
Riparian land is land adjacent to a stream or river - doctrine states that the owner of riparian land has the reasonable right to use the bodies of water and land underneath, as long as the owner doesn’t interfere w/ others’ use of the bodies of water
What is the “natural flow” theory of water rights?
A downstream riparian owner has the absolute right to unaltered water flow, meaning an upstream riparian owner may only use the water if it does NOT diminish the flow by quantity or quality
*MINORITY RULE
What is the “reasonable use” theory of water rights?
-courts balance the reasonableness of the needs and uses of both upstream and downstream owners
-a downstream owner may only enjoin an upstream owner’s water use if they deprive the downstream owner of necessary water or substantially interfere w/ downstream use
*majority rule
What is the “prior appropriation doctrine”?
-any prior appropriation of water will dictate legal rights to water
-prior appropriation causes the establishment of water rights to be independent of land, meaning the right may be severed and sole to another to use on the land
What are the 4 theories of groundwater ownership?
- absolute ownership
- reasonable use
- correlative rights
- prior appropriation
What are the 2 ways a property owner may use surface water on their land?
When an owner has surface water on their land, they may:
- capture the water and divert it for use and
- expel the water from property
May a property owner exclude others from the airspace above their property?
NO
When may a local gov create a zoning ordinance?
Can create based on delegation of the state legislature’s “police power” to safeguard the health, safety and welfare of citizens
What is a “common-interest ownership community”?
Include condominiums, cooperative, and subdivisions w/ homeowners’ associations run by private governments (ie, boards) that enforce and make rules, assess charges, and make repairs and improvements
What is a homeowners association?
is a cooperative association w/ the power to control the physical layout of the land in a neighborhood and continued maintenance through the use of covenants
What is a “fixture”?
A chattel that has become so connected to real property that a disinterested observer would consider the chattel to be part of the property permanently
*chattel = personal property
What is an easement?
A grant of an interest in land that entitles a person to use land possessed by another
*easements may be created by express grant or reservation, by implication, or by prescription
What is a license?
A privilege to use the land of another in a particular way
*licenses do NOT need to be in writing and ARE REVOCABLE at the will of the licensor
What is a real covenant?
Non-possessory interest in land that obligates the holder to either do something (affirmative) or refrain from doing something (negative) on the land
It is enforceable by a successor owner of the promisee’s land and is enforceable against a successor to the promisor’s land
*a real covenant gives rise to personal liability ONLY
What is an equitable servitude?
Is a covenant (ie, a promise to do or not do something relating to the land) enforceable in equity or against successors to the land of the original parties to the K
*the usual equitable remedy granted is an injunction against violation of the covenant
What is the difference between an affirmative easement and negative easement?
Affirmative Easement: allows the holder of the easement to do something on someone else’s land
Negative Easement: allows the holder to prohibit a landowner from doing something that is normally permissible on his own land
What is an easement appurtenant?
When an owner of a tract of land allows another person to use the owner’s land in a way that benefits the other person’s physical enjoyment of their own property
RUNS WITH THE LAND unless it has been terminated
*X gives Y an easement appurtenant that allows Y to cross through X’s property (the servant estate) to better access Y’s own property (the dominant estate)
What is an easement in gross?
An easement that does NOT benefit its owner in the use and enjoyment of their land, but merely gives them the right to use the servant land
An easement in gross can be personal OR commercial
*“in gross” is the term used to signify that the benefit of the easement is not appurtenant to other land
What are the 4 ways to create an easement?
- express grant
- necessity
- implication
- prescription
What are the 3 requirements for creating an easement by implication?
IMPLICATION:
- PRIOR USE: meaning the undivided parcel was continuously used before division in such an obvious way such that the parties expect that use to survive division
- COMMON OWNERSHIP: meaning the original undivided tract was commonly-owned and an owner retains a parcel after division AND
- REASONABLE NECESSITY: meaning the easement is reasonably necessary for the now-dominant owner’s use and enjoyment of the parcel
*an easement by implication is also know as an easement implied from prior use
What are the 3 requirement for creating an easement by prescription?
- open and notorious sue;
- w/out the permission of the owner
- continuous and uninterrupted use for the statutory period
*exclusivity is NOT required to create an easement by prescription
What are the 7 ways to terminate an easement?
- in accordance w/ the express terms of the easement
- by a merger of the dominant and servant estates
- by a written release of the easement to the servient owner
- by abandonment of the easement
- by prescription
- by destruction or condemnation of the servant tenement AND/OR
- by expiration of the necessity that created that easement
*abandonment requires more than mere non-use –> there must be an act showing clear intent to abandon
What are the 5 requirements for the burden of a real covenant to run with the land?
- intent by the OG parties for the burden to run
- horizontal privity
- vertical privity
- the burden touches and concerns the land
- notice of the burden for subsequent purchasers
*distinguish from the benefit of covenant running with land
What is “horizontal privity”?
-means that the covenant was created during the transfer of burdened and benefitted land
-to establish horizontal privity, the promisor and promisee must share an interest in the real property independent of the covenant or equitable servitude at the time the promise is made, such as is in connection w/ the conveyance of an interest in the property (ie, between landlord and tenant or mortgagor and mortgagee)
*horizontal privity is required for the BURDEN of a covenant to run
What is vertical privity?
Means the current owners (successor in interest) obtained land by legal transfer from OG covenantors
The successor is to the holder of the entire interest that the OG covenantor had
-vertical privity is present in a sale, lease, inheritance, or foreclosure
-vertical privity is NOT present in adverse possession because the prior owner did not formally transfer their interest
*vertical privity is required for the BENEFIT AND BURDEN of a covenant to run w/ the land
What are the 3 requirements of the BENEFIT of a real covenant to run w/ the land?
- intent by OG parties for the covenant to run
- vertical privity
- the covenant touches and concerns the land
*horizontal privity is NOT required for the benefit of a covenant to run w/ the land
What is a “condominium”?
means of housing and real property ownership that is settled amongst other similar arrangements w/ common facilities that are controlled by a joint-ownership association
What is a cooperative?
land and one or more buildings held by a corporation, where the units are leased to residents who also own shares of stock in the corporation
What is the difference between a mortgage on a condominium and cooperative?
Condominium: each unit owner owns their own interest in the unit and may mortgage it
Cooperative: each unit has a blanket mortgage, where detail on the mortgage would result in foreclosure of the building and termination of ALL leases
What is a “declaration” as applied to common-interest ownership communities?
is a recorded document that imposes the covenants and easements creating a common-interest ownership community
What are the 4 governing documents for common-interest ownership communities?
- the declaration
- article of inc
- bylaws
- rules and regulations adopted by association
What is a common-interest association?
Is the governing body of a common-interst ownership community that manages the community’s affairs
What are the 4 duties of a common-interest association?
- provide services
- maintain facilities
- manage the affairs of the common-in ownership community
- enforce covenants and easements
