Rights in Real Property Flashcards
Easement
An easement is a grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land.
An affirmative easement is the right to go onto and do something on another’s land. A negative easement entitles the holder to prevent the other landowner from doing something that would otherwise be permissible. Negative easements are limited to light, air, support, stream water and can only be created expressly.
An easement appurtenant involves two parcels of land, where the easement benefits the holder in his use or enjoyment of his own land. It transfers automatically. An easement in gross gives its holder a benefit that is not related to his use or enjoyment of his own land. It is not transferable, unless for commercial purposes.
Easement Creation
-PIG
Prescription (COAH): acquired adversely when use is
-continuous
-open and notorious
-actual (not necessarily exclusive)
-hostile
Implication
-Necessity: when there is no way out except over some part of the grantor’s land; owner of servient parcel can decide where to locate it
-Prior Use: use prior to division of the parcel was apparent and continuous and the parties expected that the use would continue after division because it is reasonably necessary to the use and enjoyment
Grant: expressly in writing
Easement Termination
-END CRAMP
Estoppel: changes position in reasonable reliance on assurances it would no longer be enforced
Necessity ends
Destruction of servient land
Condemnation
Release in writing
Abandonment: show by physical action an intent to never use the easement again
Merger: same title in the same person
Prescription
License
A license is a privilege to enter another’s land for some delineated purpose. It is revocable at will, unless barred by estoppel when the licensee invested a substantial amount of money or labor in reasonable reliance on the license.
Real Covenant
A covenant is a written promise to do or not do something related to your own land. A breach of a covenant is generally remedied by money damages.
Burden Running
-WITHN
A covenant’s burden runs with the land to bind future successors of the burdened estate if:
-Original promise was in writing
-Original parties intended the covenant to run
-The promise touches and concerns the land
-There was horizontal privity between the original parties (shared some interest in the land independent of the covenant at the time it was created)
-There was vertical privity between the original party and the successor (non-hostile nexus)
-The successor had notice of the promise when she took
Benefit Running
A covenant’s benefit runs with the land to benefit future successors of the benefited estate if:
-Writing
-Intent
-Touch and concern
-Vertical privity
Equitable Servitude
An equitable servitude is a promise that equity will enforce against successors of the burdened land regardless of if it runs with the land. A breach is generally remedied by an injunction to enforce the promise.
ES Enforceable When
An equitable servitude is enforceable when:
-Writing
-Intent
-Touch and concern
-Notice
Common Scheme Doctrine
A promise that was not in writing may still be enforced as an equitable servitude if a subdivider of land had a general scheme of residential development when sales began, that scheme was contained in some deeds, and the defendant lot holder had notice (AIR) of the promise in those other deeds.
Defenses to ES
A court will not enforce an equitable servitude if:
-Neighborhood conditions have changed as to all parcels
-Unclean hands
-Benefited party acquiesced to the violation
-Estoppel
-Laches
Zoning
Pursuant to its police powers, government may enact statutes to reasonably control land use for the protection of the health, safety, morals and welfare of its citizens. Ordinances are invalid if they have no reasonable relation to public welfare, are too restrictive, or are discriminatory.
Variances
A variance grants a landowner permission to depart from the restrictions of a zoning ordinance. The proponent of the variance must show undue hardship and that to grant the variance would not cause diminution to neighboring property values.
Non-Conforming Use
A once lawful, existing use that has been deemed non-conforming by a new ordinance cannot be eliminated all at once without just compensation. A non-conforming use cannot be extended, but insubstantial changes are permitted.
Land Support
If land is in its natural state, a neighbor is strictly liable if their excavation causes it to cave in.
If the land has been built on, a neighbor is only liable for excavation that causes a cave-in if negligent, unless the plaintiff shows that the land would have caved even in its natural state.
