Rights in Real Property (Modules 7-10) Flashcards
Easement Definition
Grant of a nonpossessory property interest entitling its holder to some form of use or enjoyment of another’s land; presumed to be perpetual unless specified otherwise
Affirmative Easement
Right to go onto and do something on servient land
Negative Easement Types and Creation
Entitles holder to prevent the servient landowner from doing something that would otherwise be permissible
Types - LASS
Land
Air
Support
Stream water from artificial flow
*minority allow for a scenic view
Creation
Can only be created expressly by a writing signed by the grantor
Easement Appurtenant
When easement benefits its holder in his physical enjoyment or use of his own land; two parcels must be involved: dominant (benefitted) and servient (burdened)
Easement in Gross
Servient land is burdened but there is not dominant land, just the holder that has the benefit of the easement
Transferability of Easements Appurtenant and in Gross
Appurtenant (Dominant Land): passes automatically with transfers of the dominant land, regardless of it’s mentioned in the conveyance
Appurtenant (Servient Land): passes with the land unless the new owner is a BFP without notice of the easement
In Gross - not transferrable unless it is for commercial purposes
Types of Easement Creation
PINGE
Prescriptive
Implied
Necessity
Grant
Express Reservation
By Grant (Easement Creation Type)
An easement memorialized in writing unless its duration is under SOF time (1 year)
Implied from Existing Use (Easement Creation Type)
Created by operation of law, exception to SOF
1) previous use on servient land was apparent and continuous, and
2) reasonably necessary to the dominant tenement’s use and enjoyment
Implied Without Any Existing Use (Easement Creation Type)
In two limited situations:
1) Subdivision Plat
- buyers of the lots have implied easeements to use the streets to access their lots
2) “Profit a Prendre”
- implied easement to pass over surface of servient land and use it to extract minerals or some product of the servient property
By Necessity (Easement Creation Type)
Also an implied easement, implied when a landowner conveys a portion of their land with no way out except over some part of the grantor’s remaining land; the owner of the servient parcel has right to pick where the easement is located
By Prescription (Easement Creation Type)
Essentially easement acquired by adverse possession; use must be:
Continuous
Open
Actual
Hostile
Express Reservation (Easement Creation)
Arises when grantor conveys title to the land but reserves the right to continue to use the tract for a specific purpose
Scope of Easement Use
Servient tenement can select the location of the easement as long as its reasonable
Dominant tenement can’t unreasonably use or modify it but if they do, it’s not terminated, the servient owner has to file an injunction
If easement holder is the sole user of it then they have duty to repair, but if both the holder and the servient use it then repairs are apportioned
Ways to Terminate Easements
END CRAMP
- Estoppel (servient owner materially relies on oral intent to abandon easement by dominant)
- Necessity (ends once necessity ends, unless it was reduced to express grant)
- Destruction (destruction of servient land unless owner did it willfully)
- Condemnation (gov uses eminent domain)
- Release (by dom to sub, must be in writing)
- Abandonment (dom takes physical action to show that they’ve abandoned use for good, but nonuse or mere words don’t count)
- Merger (title to easement and title to servient land become vested in same person, they don’t need easement on their own land); even after merger, if there is a necessary easement (landlocked) after conveyance the new owner will have a new necessary easement
- Prescription (continuous/actual/open/hostile use by servient)
License
Mere privilege to enter another’s land for some delineated purpose; not an actual interest so it’s revocable at will by licensor
Basically selling someone a ticket to the movie theater
Covenants
Written promise to do or not to something related to land; normally found in deeds and when certain requirements are met they run with the land at law
If P wants money damages it’s a covenant; if they want an injunction it’s an equitable servitude
Restrictive and Affirmative Covenants
Restrictive (i.e., Negative) - most common; promise to refain from doing something related to land
Affirmative - promise to do something like maintain shared fence
Requirements for Burden to Run with the Land (Restrictive Covenants)
WITHN
W - writing (original promise between covenanting parties was in writing)
I - intent (original covenanting parties intended for burden to run to successors)
T - touch and concern (affect the parties’ legal relations as landowners and not just as members of the community)
H - horizontal and vertical privity
N - notice (successor must have notice of the promise when they took, actual or constructive)
Horizontal Privity (Restrictive Covenants)
The nexus between original covenanting parties; must have been either one of the below when the covenant was created (i.e., shared some interest in the land independent of the covenant)
a) grantor-grantee
b) landlord-tenant
c) mortgagor-mortgagee
Vertical Privity (Restrictive Covenants)
Nexus between the successor in interest and the original covenanting party
Must be a non-hostile nexus (i.e., adverse possession doesn’t count)
Requirements for Benefit to Run with the Land (Restrictive Covenants)
WITV
W - writing (original promise bt covenanting parties was in writing)
I - intent (original covenanting parties intended for benefit to run to successors)
T - touch and concern
V - vertical privity
Easier for benefit to run than burden because no horizontal privity required; so where HP is lacking, successor receiving benefit can enforce the covenant against the original burden promisor but NOT that person’s successor
Termination of Covenant
May be terminated by:
1) written release
2) merger of the benefitted/burdened estates
3) condemnation of the burdened property
Equitable Servitudes
Promise that equity will enforce against successors of the burdened land, regardless of whether it runs with the land at law, as long as the burdened successor isn’t a BFP
Form of relief is injunction
Creation of Equitable Servitude
WINT
W - writing (generally, except for common scheme doctrine)
I - intent (original parties intended for it to be enforceable by successors)
N - notice (subsequent purchasers of land burdened by the covenant had actual, inquiry, or record notice of the covenant when they acquired the land)
T - touch and concern (promise affects the parties as landowners and not just members of the community)
Implied Equitable Servitudes (Common Scheme Doctrine)
Exception to the general requirement that the original promise be in writing
If a developer subdivides land and some deeds contain restrictive covenants and others don’t, the covenant will be binding on all the parcels provided there was:
1) a common scheme of development
2) notice of the covenants (actual inquiry or record)
Defenses to Enforcement of Equitable Servitudes
U LEAN
1) unclean hands (person seeking enforcement is violating a similar restriction on their land)
2) laches (benefitted party failed to bring suit in a rxble time)
3) estoppel (benefitted party acted in a way such that a rxble person would believed the covenant was waived)
4) acquiesced (benefitted party acquiesced in a violation of the servitude by the burdened party)
5) neighborhood conditions have changed
Adverse Possession Elements
To establish title by adverse possession possessor must show: COAH
C: continuous (can use in same type as owner would ex. continuous possession of summer house during the summer)
O: open and notorious (such use that usual owner would make of the land and sufficiently apparent to put the real owner on notice trespass is occurring)
A: actual and exclusive
- exclusive: not sharing with true owner or the public
H: hostile (without owner’s permission; possessor’s state of mind is irrelevant, doesn’t matter if they think it’s their own land or something like that)
- a co-tenant must ouster the others for it to be hostile
- if grantor stays in possession of land after they give to grantee they’re assumed to have permission
- AKA “claim of right”
SOL for Adverse Possession
SOL begins once the true owner can first bring suit, but filing a suit will not stop the period from running
Don’t have to pay taxes on the property you’re adversely possessing but it’s good evidence of claim of right
Tacking (Adverse Possession)
One adverse possessor can tack their tack with the land onto their predecessor’s time so long as their is privity (a non-hostile nexus bt them like a deed will or contract)
Privity is absent if the new possessor is taking it by ouster
Disability of True Owner (Adverse Possession)
If true owner is afflicted by disability (infancy, insanity imprisonment) at the INCEPTION of the adverse possession then SOL does not begin to run; but if become afflicted during the middle of it then it won’t affect
Effect of Covenants in True Owner’s Deed (Adverse Possession)
If adverse possessor use the land in violation of a restrictive covenant during the SOL period then they take without the covenant attached
But if they comply with the covenant during SOL then they title subject subject to the restriction
Cannot adversely possess government-owned land
Cannot adversely possess government-owned land