Rights in Land

Question 1

What are the five things that affect rights in land?

Answer 1

Those that dictate how land is to be used:

1. Covenant
2. Equitable servitude

Those that make affirmative use of another’s land:

1. Easements
2. Profits
3. Licenses

Question 2

What is a covenant?

Answer 2

A promise to do or refrain from doing something that attaches to the land.

Question 3

How is a covenant created?

Answer 3

A covenant must:

1. Touch and concern the use and enjoyment of the land.
2. Intent that the covenant run with the land.
3. Notice
4. Privity.

Statute of Frauds applies.

Question 4

What is touch and concern?

Answer 4

For the servient estate, the restriction must reduce the use and enjoyment of the servient estate.

For the dominant estate, the restriction must increase the use and enjoyment of the dominant estate.

Question 5

What is intent that the covenant run with the land?

Answer 5

The writing must include language that shows the parties’ intent for the covenant to run.

Question 6

What is notice for a covenant?

Answer 6

The current owner of the servient estate must take with notice. That is, actual notice, constructive notice, or inquiry notice. Only a requirement for the servient estate.

Question 7

What is privity?

Answer 7

Horizontal Privity - It is the relationship that exists between the original covenantor and covenantee. Horizontal privity must be in connection with the land. It is privity of contract. Horizontal privity is not required for the benefit to run.

Vertical Privity - It is the relationship that exists between an original party to a running covenant and the successor in interest. For the burden to run, vertical privity only occurs when there is a transfer of all the owners interest.

Question 8

What is an equitable servitude?

Answer 8

It is a covenant with an equitable relief.

Question 9

How is an equitable servitude created?

Answer 9

An equitable servitude must:

1. touch and concern the land.
2. Intent.
3. Notice.

Statute of Frauds applies.

Question 10

What is an implied reciprocal servitude?

Answer 10

If a restriction fails to be a covenant or equitable servitude, then one may establish an implied reciprocal servitude.

Question 11

How is an implied reciprocal servitude created?

Answer 11

Must have:

1. restriction must be a part of a common scheme or plan for development of the area; and
2. current owner of the servient estate must take with some sort of notice of the requirement.

Question 12

What is a common scheme?

Answer 12

A common scheme or plan can be determined by five factors:

1. a large percentage of lots expressly burdened;
2. oral representations to buyers;
3. statements in advertisements to buyers; or
4. recorded plat maps or other declarations

Question 13

Who can enforce an implied reciprocal servitude?

Answer 13

1. Original grantor,
2. Any purchaser affected by the common scheme, and
3. a condo or subdivision association for common land conveyed to it.

Question 14

What are the ways for a covenant or equitable servitude to terminate?

Answer 14

1. Written release
2. Merger
3. Abandonment
4. Estoppel
5. Changed circumstances

Question 15

What is an easement?

Answer 15

An interest in another’s land.

Question 16

Definitions for Easements

Answer 16

Servient estate - estate that is burdened

Dominant estate - estate that is benefited. Not always required.

Easement appurtenant - Benefits a parcel of land (dominant estate).

Easement in gross - there is no dominant estate; it only benefits a person or entity.

Question 17

How are easements created?

Answer 17

Express easement - An easement created by an express writing.

Easement Implied by Prior Use - 1. common ownership prior to severance; 2. prior use or quasi-easement; 3. use was apparent, or could be discovered upon a reasonable inspection; and 4. reasonable necessity.

Easement by Necessity - 1. Common ownership prior to severance; and 2. strict necessity.

Easement by Plat - A buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision.

Easement by Prescription - 1. open and notorious; 2. actual; 3. continuous; 4. hostile; and 5. exclusive.

Oklahoma RP Distinctions - Oklahoma requires that the conveyance of all property interests other than leases of one year or less, be evidenced by a signed writing (including easements created through an express grant).

In Oklahoma, the need for an easement need only be reasonable, not strict/absolute.

In Oklahoma, the period for acquiring an easement by prescription in Oklahoma is 15 years.

Question 18

What is the Scope of Easements?

Answer 18

If it is an express easement states use, then that is the only allowable use.

Otherwise, an easement can be used to the extent that it is reasonably necessary to do so.

Question 19

What is surcharging the easement?

Answer 19

If a holder overuses an easement. This does not terminate the easement, but it does entitle the holder of the servient estate to damages or injunction.

Question 20

What are the obligations of an easement holder?

Answer 20

A holder may do what is reasonably necessary to maintain the easement even if it interferes with the servient owner’s use of his property.

Question 21

What are the rules governing the transfer of an easement?

Answer 21

When the dominant tenement is transferred, the benefit follows the transferred estate.

An easement in gross may be transferred if the grantor of the easement so intended, and the easement is commercial in nature.

For an express easement, the transfer of the servient estate will result in the transfer of the burden, only if the dominant holder complied with the recording statute.

Question 22

How can an easement be terminated?

Answer 22

1. Destruction of the servient estate - unless the owner intentionally or negligently caused the destruction.
2. Merger - The dominant and servient estate come into common ownership.
3. Release - A written release expressly terminating his rights in the easement. Statute of Frauds applies.
4. Abandonment - If 1. intent to abandon, and 2. an affirmative act in furtherance of the intent.
5. Estoppel - Owner of the servient detrimentally relief on holder’s action/abandonment, and the reliance was foreseeable.
6. Severance - Owner of the dominant estate tries to sever the easement from the estate, termination results.
7. By Prescription - Owner of the servient estate interferes with the use of the easement for the statutory period.
8. Bona Fide Purchaser - Pays value and no notice.
9. End of Necessity - For easement by necessity only, if the necessity ends, the easement ends.

Question 23

What is a profit?

Answer 23

It is a nonpossessory interest in land. It is a right to enter on property and take something off of it.

Question 24

How are profits created?

Answer 24

They can be created expressly or by prescription.

Question 25

Are profits transferable?

Answer 25

Yes.

Question 26

How are profits terminated?

Answer 26

The same as easements.

Question 27

What is a license?

Answer 27

It is a privilege (permission) to go on land, but is deemed to be a personal right rather than an interest in the land.

Statute of Frauds is not required.

They are freely revocable, unless 1. the license is coupled with another interest, or 2. executed license, that is, the licensee expended money in reliance.

They are not transferable.

They terminate upon death of the licensor or he conveyance of the servient estate.

Question 28

What are fixtures?

Answer 28

It is a chattel that has become so connected to real property that a disinterested observer would consider the chattel to be part of the realty.

Question 29

When does a chattel become a fixture?

Answer 29

When one person owns the chattel and the land to which the chattel is to be fixed, the chattel becomes a fixture if:

1. it is annexed to the real property;
2. it has been appropriated to the use of the land; and
3. the annexor intends it to be a fixture.

Question 30

When is an annexed chattel a fixture?

Answer 30

If the chattel is so necessary or convenient to the use of the land that it is commonly regarded as part of the land.

To determine when a chattel has been appropriated to the use of the land, the court will consider the nature of the land or structure to which the chattel is affixed.

Question 31

When is chattel annexed to the land?

Answer 31

A chattel may be deemed to be annexed to the land if: 1. it is permanently attached to real property or to something appurtenant to the real property; 2. it would be difficult to move solely based on its own weight; or 3. it is constructively annexed to the property by being specially designed for the property or a fixture on the property.

Question 32

How is an intent to annex determined?

Answer 32

It is a question of fact judged by the reasonable person standard.

Question 33

What happens to fixtures in a transfer of the land?

Answer 33

A deed to real property will transfer all of the fixtures on the property. However, an agreement may be made.

A mortgage covers the land and all its chattels.

Question 34

What about zoning and rights in land?

Answer 34

The state possesses the power to regulate for the health, safety, and welfare f its citizens.

Zoning laws may be challenged under the Due Process Clause and Equal Protection Clause. Also, a zoning ordinance may be challenged under the First Amendment.

Oklahoma RP Distinction - Oklahoma’s Constitution guarantees that private property may only be taken or damaged for private use by consent of the owner, except for “private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes.” Additionally, private property may not be taken or damaged for public use without just compensation. The court ultimately determines whether a use is private or public.

Oklahoma courts construe eminent domain provisions of the state constitution strictly in favor of the owner and against the condemning party. Accordingly, courts construe the term “public purpose” narrowly, and acknowledge that Oklahoma’s state constitutional eminent domain provisions place more stringent limitations on governmental eminent domain power than the limitations imposed by the Fifth Amendment of the US Constitution.

Oklahoma law grants municipalities eminent domain power in an urban renewal area for the elimination and prevention of the development or spread of blight. A blighted area is one which is detrimental to the public health, safety, morals, or welfare due to the condition of the properties therein, by reason of dilapidation, deterioration, or age, or due to population overcrowding, arrested economic development, traffic congestion, faulty lot layout, or insanitary or unsafe conditions, etc.

Whether a taking is total or partial, just compensation is measured as “the value of the property taken, and in addition, any injury to any part of the property not taken.

Question 35

What Support Rights do landowners have?

Answer 35

A landowner has the right to lateral support (side support):

An owner of land has no liability if a susiding of neighboring land is caused by natural conditions on the owner’s land. However, a landowner may be strictly liable if his excavation causes adjacent land to subside. If there are improvements, strict liability only applies if the adjacent land would have collapsed in its natural state. If the adjacent land would not have collapsed in its natural state, the landowner is only liable for damages resulting from negligence.

A landowner has the right to subjacent support (below):

This right extends to land in its natural state and buildings existing on the date when the subjacent estate is severed from the surface. The underground landowner is liable for damages to subsequently erected buildings only if he is negligent.

Question 36

What are Riparian rights?

Answer 36

Rights in water by an owner of land that abuts a navigable or non-navigable natural river, stream, or lake.

Natural flow doctrine - a landowner may make unlimited use of riparian water fro domestic or natural uses such as drinking and bathing. A landowner may use water for artificial use if it does not subtantially diminish the flow of the body of water.

Reasonable Use Doctrine (Majority) - A riparian owner may make reasonable use of riparian water so long as his use does not interfere unreasonably with the rights of other riparian owners.

Prior Appropriation Doctrine - The right to use water is to the first person to take the water for beneficial purposes.

Oklahoma RP Distinction - Oklahoma follows the reasonable use doctrine with regard to riparian rights.

Question 37

What is Diffuse Surface Water?

Answer 37

Water from rain or melted snow that runs over the surface outside a recognizable body of water.

Common enemy rule - an owner may use any method available to keep diffuse surface water from coming onto his land.

Civil law rule - an owner was not permitted to interfere with the flow of diffuse surface water.

Reasonable use rule - an owner may use reasonable means to alter the flow of diffuse surface water, even if surrounding landowners are harmed.

Question 38

What is underground water?

Answer 38

Water that runs beneath the surface of the land. In the case of percolating underground water:

Rule of capture/English absolute ownership doctrine - a possessor may take as much of the water percolating under his land as he desires.

Reasonable use test.

Correlative rights test - all owners of land situated over a pool of underground water have equal rights to use the water.

Prior appropriation.

Oklahoma RP Distinction - Oklahoma follows the correlative rights test with regard to underground water.