Rights in the Land

Question 1

o Creation: For a covenant to run with the land, the following elements must be met (mnemonic: PINT)

Answer 1

Privity, Intent, Notice, and Touch and Concern.

Question 2

Covenant that runs with the land

EXAMPLE: A owns Blackacre and Whiteacre. A subdivides the parcels and sells Whiteacre to B. In that sale, A wrote a restriction. A sold Blackacre to C, B sold Whiteacre to D. D now wants to violate the restriction and C wants to sue D for damages. C would have to show that the restriction?

Answer 2

that the restriction touched and concerned the land,
that it was intended that the restriction run with the land, that D took with notice of the restriction, and C would have to establish horizontal privity between A and B and vertical privity between A and C and also B and D. If so, C can recover in damages.

Question 3

• Horizontal Privity = The relationship between the original covenantor and covenantee.
o Requires privity of contract in connection with the land.
what are some examples of relationships that have horizontal privity in contract?

Answer 3

 Landlord/tenant
 Grantor/ grantee
 Mortgagor/mortgagee

EXAMPLE: A owned Blackacre and B owned Whiteacre. One day they decided to enter into a contract to place restrictions on their property. There is privity of contract between A and B, but not privity that impacts a connection with the land.

Question 4

Explain vertical Privity

Answer 4

• Vertical Privity = The relationship between an original party to a running covenant and the successor in interest to the original party.
o In order for the burden to run, privity of estate will only exist when the holder of the servient estate transfers all of his interest in the servient estate to the new owner.
EXAMPLE: B sells all that B owns to D; privity of estate exists between B and D.
EXAMPLE: B owns property and just leases it to D for 5 years; there is no vertical privity.

Question 5

• The writing (Statute of Frauds applies) for a covenant to run with the land must include language that shows:

Answer 5

must include language that shows the parties’ intent for the covenant to run with the land and bind successors in interest.

Question 6

Explain the Notice requirement in PINT

Answer 6

 Notice
• The current owner of the servient estate must take with notice of the restriction
o Requirement on servient side only.
o Recordation will provide notice.
 Actual Notice (what you know).
 Constructive Notice (recordation).
 Inquiry Notice (you learned enough information that would lead a reasonable person to inquire further, but failed to do so).

Question 7

Explain the Touch and Concern the Land requirement in PINT
Servient Estate:

Dominant Estate:

Answer 7

• Servient Estate: The restriction must reduce the use and enjoyment of the servient estate.
• Dominant Estate: The restriction must increase the use and enjoyment of the dominant estate.

Question 8

EXAMPLE: Able owned Blackacre and Whiteacre. Able severed and sold Whiteacre to Baker. In the contract of sale, Able said, “You, Baker, hereby promise to drive my kids to school one day a week.” Baker then sells Whiteacre to Diane and Able sells Blackacre to Connie. Connie wants Diane to drive her kids to school. Does this restriction run with the land? any remedies?

Answer 8

The restriction does not run with the land. This restriction does not touch and concern the land. Able could only sue Baker for breach of contract,

Question 9

EXAMPLE: When Able sold Whiteacre to Baker, Able wrote into the conveyance that, “Baker agrees to maintain the fence between Able’s parcel and Baker’s parcel.” This restriction burdens the servient estate and benefits the dominant estate (Blackacre). The burden would run with the servient estate, the benefit would run with the dominant estate. This is an ___________ ___________ that touches and concerns the land.

EXAMPLE: When Able sold Whiteacre to Baker, Able wrote into the conveyance that, “Baker agrees to build nothing more than a one-story single-family residence on Baker’s parcel.” This is a __________ __________ that touches and concerns the land.

Answer 9

affirmative restriction

negative restriction

Question 10

o One way to impose a reciprocal servitude is by showing a common scheme or plan.
 Restriction must be part of a common scheme or plan for development of the area and the current owner takes with notice of the restriction.
• An implied reciprocal servitude is imposed on any lot that does not contain the restriction if a common scheme was evident at the time of the conveyance of those lots.
• Factors to show a “common scheme”:

Answer 10

• Factors to show a “common scheme”:
o A large percentage of lots expressly burdened;
o Oral representations to buyers;
o Statements in advertisements to buyers; or
o Recorded plat maps or other declarations.

EXAMPLE: Owner has a large family estate that he subdivides into 10 lots. He sells off 9 of the lots and into their deeds writes, “This property can only be developed through single-story residences.” When Owner sells off the 10th deed, Owner forgets to include the restriction. There is no express restriction but it can be implied since it is part of the common scheme and the current owner took with inquiry notice by seeing that everyone else is building only single-story residences.

Question 11

implied reciprocal servitudes can be enforced by?

Answer 11

• Enforcement: can be enforced by:
o The original grantor;
o Any purchaser affected by the common scheme; or
o A condo or subdivision association for common land conveyed to it.

Question 12

• Ways to Terminate a Covenant or Equitable Servitude?

Answer 12

• Ways to Terminate a Covenant or Equitable Servitude
o Written release;
o Merger of the dominant and servient estates;
o Abandonment;
o Estoppel; or
o Changed circumstances so that the reason behind the restriction is no longer valid.

Question 13

EXAMPLE: Secluded B&B is known for its view. Owner of the B&B subdivides the lot and sells off a portion of the lot. The portion sold is the portion that provides the view for the B&B. When Owner sold the portion, a restriction was placed into the deed that this new parcel cannot be developed in any manner that will interfere with the view from the B&B. A few years later, the B&B burns down and is never rebuilt. The owner of the servient estate wants to develop the land in a way that would interfere with B&B’s view and the original owner wants to prevent this from happening. Can the original restriction be enforced?

Answer 13

This restriction can no longer be enforced because the purpose behind it no longer exists.

Question 14

T or F o Generally, property owners’ associations have standing to enforce covenants and equitable servitudes.

Answer 14

True

Question 15

• Creation of Easements: Can be created expressly, by implication, or by prescription.

How are they created expressly?
How by implication?
How by prescription?

Answer 15

1. Expressly – A writing must satisfy the Statute of Frauds.
2. By Implication
    Easement Implied by Prior Use (four requirements)
   • Severance of title to land held in common ownership;
   • The use giving rise to the easement was in existence at the time of the severance;
   • The use was apparent and could be discovered upon a reasonable inspection; and
   • At the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract.

o By Prescription (Adverse Possession)-  If someone actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period.
EXAMPLE: Every day, A drives across B’s land to reach a public highway. A can argue he has acquired an easement by prescription.
NOTE: A cannot claim adverse possession of B’s land that he is using. A is not exclusively occupying B’s land, merely using it to reach a public highway, and thus does not satisfy the requirements for acquiring full title by adverse possession.

Question 16

How are easements created by necessity? (2 requirements)

by plat?

Answer 16

 Easement by Necessity (two requirements)
• Common ownership of the dominant and the servient estate, then severance; and
• Strict necessity for the easement at the time of severance.

EXAMPLE: Owner owns a large estate but it is completely undeveloped. Owner subdivides and sells A the back half, keeping the front half which abuts a public highway for himself. A’s lot is now completely cut off from access to the public highway. There was no prior easement but it is strictly necessary to use an easement because there is no other way for A to get to and from the public road

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

Question 17

EXAMPLE: Owner owns a big parcel of land. On the back half of the parcel is a house with a paved driveway that leads from the house to a public highway. Owner sells off the back half of the parcel, which contains the house, to A, but keeps the front half, cutting off all access to the public highway for A’s subdivided lot. The deed is silent about the easement. There was common ownership, there was prior use of the driveway and as A has no way to access the public highway without trespassing on the road that crosses Owner’s retained lot, it is reasonably necessary that the easement continues. All elements are present to create an

Answer 17

Easement by Implication

Question 18

o If an express easement states a particular 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.

EXAMPLE: A has a parcel of land that has been cut off from all road access; however, A has an easement that allows A to drive across B’s land to reach the public highway. A decides to subdivide A’s property so that instead of just A driving across the easement, now C also drives across the easement. Is this considered a reasonable use ?

EXAMPLE: A has a parcel of land that has been cut off from all road access; however, A has an easement that allows A to drive across B’s land to reach the public highway. A tears down the single-story residence on A’s land and constructs a multi-story apartment building. All of the residents of the apartment building must use the easement in order to access the public highway. Is this reasonable use of the easement?
Does this terminate the easement?

Answer 18

Example 1 Yes This will still be considered a reasonable use. Problems arise when the use goes beyond what is reasonable.

Example 2 No This is known as “surcharging the easement” or in other words, going beyond what is reasonable.

• This does not terminate the easement; however, the holder of the servient estate can sue for an injunction or damages.

Question 19

T or F o The holder of the easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner’s use of their property.

Answer 19

True

Question 20

EXAMPLE: Pursuant to an easement, Power Company could run power lines underground across Owner’s property. All conveyances recorded the easement and Owner had constructive notice of the easement. Owner was a horticulturist and had developed a one-of-a-kind rose, which was priceless. The rose was planted directly on top of the power lines that were run underground on Owner’s land. A problem developed with the power lines and the only way to fix the problem was to dig up the rose. Can the power company dig up powerlines?

Answer 20

Yes Power Company, who held the easement, had a right to maintain it.

Question 21

o Termination Based on the Actions of the Easement Holder: 5 ways

Answer 21

 Merger of Title: Occurs when the owner of the dominant estate also acquires the servient estate.
 Written Release: Expressly terminates the owner’s rights in the easement (must satisfy the Statute of Frauds).
 Abandonment: Requires proof of intent to abandon and an affirmative act in furtherance of the intent. EXAMPLE: A owns Blackacre and between Blackacre and a lake where A fishes, there is Whiteacre. A approaches the owner of Whiteacre and arranges to purchase an easement across Whiteacre to last for five years. Two years later, A does not want to fish; however, neighbor C does want to fish. A offers to transfer the easement to C. This would be improper because the easement was to benefit Blackacre; A is attempting to sever the easement from the dominant estate.

 Estoppel: The owner of the servient estate foreseeably and detrimentally relies on the easement holder’s action/abandonment.
 Severance: The owner of the dominant estate tries to sever the easement from the dominant estate (only arises with easements appurtenant).

Question 22

EXAMPLE: Railroad Company had an easement to operate a railroad line across someone else’s property. After a few years, Railroad Company stopped using the easement. A year later, Railroad Company ripped up all the railroad tracks. Simply stopping the use of the railroad tracks did not terminate the easement; however, ripping up the railroad tracks showed intent to abandon. At that point, the easement was terminated by ____________ .

Answer 22

abandonment.

Question 23

EXAMPLE: A owns Blackacre and between Blackacre and a lake where A fishes, there is Whiteacre. A approaches the owner of Whiteacre and arranges to purchase an easement across Whiteacre to last for five years. Two years later, A does not want to fish; however, neighbor C does want to fish. A offers to transfer the easement to C. This would be improper because the easement was to benefit Blackacre; What is A attempting to do?

Answer 23

A is attempting to sever the easement from the dominant estate.

Question 24

o Termination Based on Actions of the Owner of the Servient Estate (3 ways)

Answer 24

 Prescription: The owner of the servient estate interferes with the use of the easement for the statutory period.

EXAMPLE: An easement holder has an easement to drive across a driveway on the servient estate and the owner of the servient estate puts a gate across the driveway and locks it. If the locked gate is there for the statutory period, the easement has been terminated.

 The Servient Estate is Sold to a Bona Fide Purchaser: Pays value and takes without notice. (if the purchased easement is not readily apparent then terminates the easement)

 End of Necessity: For an easement created by necessity, the easement ends when the necessity ends.

Question 25

Define and explain Profits

Answer 25

• A profit is a nonpossessory interest in land. The holder of the profit has the right to go on someone else’s land and take something off of it.
EXAMPLE: Permission to log trees of a certain size on the owner’s land.

• Creation: Can only be created expressly or by prescription (analysis is otherwise the same as easements).
• Profits are transferable.
• Termination: Same as easements.

Question 26

Define and Explain Licenses

Answer 26

• A license is a privilege, usually to do something on someone else’s property—i.e. go on the land. This is a personal right, not an interest in the land.
• Can be oral (no Statute of Frauds analysis).
• Licenses are freely revocable at any time, for any reason.

EXAMPLE: Buying a ticket to watch your local sports team play. The ticket states on the back that this is a license which is freely revocable.

• Licenses are not transferable unless the licensor so intends.
• Licenses terminate on the death of the licensor or the conveyance of the servient estate.

Question 27

o Exceptions: Two situations in which a license is made irrevocable:

Answer 27

 License Coupled with an Interest;
• The licensee purchases personal property that is located on the licensor’s property and is given permission to come onto the land to claim that property.
EXAMPLE: Green Giant Corp. approached Farmer Brown and entered into a contract to buy Farmer Brown’s string beans. Farmer Brown gives Green Giant permission to come onto his land to pick the string beans. Farmer Brown cannot revoke the permission because it was coupled with the interest in the string bean crop.
 Executed License
• The licensee expends money or labor in reliance on the license; license is irrevocable until the person gets value out of the expenditure.
EXAMPLE: Landowner wanted to open a restaurant on her land but knew that she didn’t have sufficient room for parking. She noticed her neighbor’s lot was vacant and asked her neighbor for permission to use the land for parking. Landowner leveled, paved, and readied the neighbor’s land to be used as a parking lot. Neighbor then changed her mind. The license cannot be revoked because Landowner expended money and labor in reliance on it.

Question 28

• A fixture is a chattel (personal property) attached to the land. Give an example
• A chattel becomes a fixture if it is owned by the landowner and is so necessary or convenient to the use of the land that it is regarded as part of the land. example
• The intent to annex a chattel is a question of fact, judged by the reasonable person standard. Example

Answer 28

EXAMPLE: A furnace installed in a house becomes part of the house.

EXAMPLE: A fence becomes part of a farm.

EXAMPLE: Did the owner intend for the floating boat dock to be part of the cottage property, or can she take it with her when she sells? A reasonable person would assume that the dock belongs with the cottage.

Question 29

• A deed to the land transfers all fixtures on the property, unless

Answer 29

buyer and seller agree otherwise

EXAMPLE: A chandelier might be removed by the seller, who also promises to install other lighting for the buyer.

Question 30

T or F • A mortgage covers the land and all its chattels, no matter when the chattels are annexed.

Answer 30

True

Question 31

What is the general rule for lateral support

Answer 31

o General Rule: A landowner has an absolute right to lateral support; therefore, if the adjoining landowner fails to provide lateral support, the adjoining landowner will be strictly liable for any damages suffered.

Question 32

o If the land has been improved, you should ask yourself the following question: Would the property have subsided anyway, or was it the weight of the improvement that caused the land to subside?
 If the land would have subsided anyway (due to its natural state

 If the weight of the improvement caused the land to subside, the adjoining landowner is liable only if

Answer 32

 If the land would have subsided anyway (due to its natural state)—remains strictly liable

only if there was negligence in depriving the neighboring property of lateral support

Question 33

• Subjacent Support
o Typical problem: Owner of a parcel will sever the below-ground and above-ground estates and sell the underground (e.g., mineral) rights to someone else; underground landowner excavates and causes above-ground structures to subside.
o General Rule: The right of support extends to:

Answer 33

 Land in its natural state; and
 Buildings existing on the date when the subjacent estate was severed from the surface.
 However, the underground landowner is liable for damages to subsequently erected buildings only if he or she is negligent.