Rights in Real Property (Modules 7-10)

Question 1

Easement Definition

Answer 1

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

Question 2

Affirmative Easement

Answer 2

Right to go onto and do something on servient land

Question 3

Negative Easement Types and Creation

Answer 3

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

Question 4

Easement Appurtenant

Answer 4

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)

Question 5

Easement in Gross

Answer 5

Servient land is burdened but there is not dominant land, just the holder that has the benefit of the easement

Question 6

Transferability of Easements Appurtenant and in Gross

Answer 6

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

Question 7

Types of Easement Creation

Answer 7

PINGE

Prescriptive
Implied
Necessity
Grant
Express Reservation

Question 8

By Grant (Easement Creation Type)

Answer 8

An easement memorialized in writing unless its duration is under SOF time (1 year)

Question 9

Implied from Existing Use (Easement Creation Type)

Answer 9

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

Question 10

Implied Without Any Existing Use (Easement Creation Type)

Answer 10

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

Question 11

By Necessity (Easement Creation Type)

Answer 11

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

Question 12

By Prescription (Easement Creation Type)

Answer 12

Essentially easement acquired by adverse possession; use must be:

Continuous
Open
Actual
Hostile

Question 13

Express Reservation (Easement Creation)

Answer 13

Arises when grantor conveys title to the land but reserves the right to continue to use the tract for a specific purpose

Question 14

Scope of Easement Use

Answer 14

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

Question 15

Ways to Terminate Easements

Answer 15

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)

Question 16

License

Answer 16

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

Question 17

Covenants

Answer 17

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

Question 18

Restrictive and Affirmative Covenants

Answer 18

Restrictive (i.e., Negative) - most common; promise to refain from doing something related to land

Affirmative - promise to do something like maintain shared fence

Question 19

Requirements for Burden to Run with the Land (Restrictive Covenants)

Answer 19

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)

Question 20

Horizontal Privity (Restrictive Covenants)

Answer 20

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

Question 21

Vertical Privity (Restrictive Covenants)

Answer 21

Nexus between the successor in interest and the original covenanting party

Must be a non-hostile nexus (i.e., adverse possession doesn’t count)

Question 22

Requirements for Benefit to Run with the Land (Restrictive Covenants)

Answer 22

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

Question 23

Termination of Covenant

Answer 23

May be terminated by:

1) written release
2) merger of the benefitted/burdened estates
3) condemnation of the burdened property

Question 24

Equitable Servitudes

Answer 24

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

Question 25

Creation of Equitable Servitude

Answer 25

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)

Question 26

Implied Equitable Servitudes (Common Scheme Doctrine)

Answer 26

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)

Question 27

Defenses to Enforcement of Equitable Servitudes

Answer 27

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

Question 28

Adverse Possession Elements

Answer 28

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”

Question 29

SOL for Adverse Possession

Answer 29

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

Question 30

Tacking (Adverse Possession)

Answer 30

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

Question 31

Disability of True Owner (Adverse Possession)

Answer 31

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

Question 32

Effect of Covenants in True Owner’s Deed (Adverse Possession)

Answer 32

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

Question 33

Cannot adversely possess government-owned land

Answer 33

Cannot adversely possess government-owned land