Rights in the land of another Flashcards
What are the 4 examples of nonpossessory interest in land that create a right of use to the land possessed by someone else?
- Easements
- Profits
- Covenants
- Servitudes
- Def easement.
2. What is the presumed duration of an easement?
- An easement is the right to use another’s land for a special purpose, but no right to possess or enjoy that land.
- Is presumed to be perpetual unless otherwise specified
What is the difference between affirmative and negative easements? Give examples of each.
An affirmative easement gives the holder an entitlement to make use of the property. A negative easement entitles the holder to compel the possessor of property to refrain from particular activity (block light, air, etc.).
What is an easement appurtenant? (It requires 2 tracts.)
An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another’s land. There must be 2 tracts: the dominant one (the one benefited by the easement) and the servient 1 (the estate subject to the easement right).
Is an easement appurtenant transferable?
An easement appurtenant ALWAYS TRANSFERS with the benefited land, regardless of whether it is mentioned in the conveyance. It also transfers automatically if the new purchaser is a bona fide purchaser with no actual or constructive notice of the easement. IT PASSES WITH THE LAND ALWAYS!
What is an easement in gross? Give an example
Is the right to use particular land, independent of the users possession of any other tract of land. It benefits the HOLDER rather than a PARCEL. For example, the right to swim in a pond or the right to erect billboards. It is transferable for if it is for commercial purposes, but not if it is for pleasure.
There are four ways of creating an easement
- Express grant (in writing unless under a year)
- Express reservation (when a grantor conveys title but reserves the right to use some of the land)
- Implication (see separate slide)
- Prescription (analogous to adverse possession)
What creates an easement by implication: from existing use?
An easement may be implied by existing use if
- Prior to the division of a piece of land
- On apparent and continuous use exists on part of it
- That is REASONABLY NECESSARY for the enjoyment of the other part and
- The court determines of the parties INTENDED for the use to continue after the division of land
What creates an easement by implication: without any existing use? 2 limited situations:
- Where you buy a subdivision in the map shows streets with access to your subdivision, you have an implied easement in those streets
- Someone with the right to extract minerals from land for profit has an implied easement to extract the product
An easement by implication can also be created by necessity under the following circumstances
When a landowner sells a portion of his property and in so doing deprive’s that portion of property of access to a public road or utility line
How man even be terminated? 8 ways
- By express conditions
- Unity of ownership (merger)
- Release (deed of release)
- Abandonment
- Estoppel (reasonable reliance on a statement of abandonment)
- Prescription (adverse possession)
- Necessity (for those created by necessity)
- Condemnation and destruction
What is different between easements and a license?
An easement is an interest in the land, a license is a privilege that is revocable. Any attempts to transfer license results in its revocation by operation of law.
What are profits in the property context?
Profits entitle the holder of the benefit to take some resource (timber, minerals, fish) from another’s estate this includes an easement by implication.
What are “covenant running with the land (real covenants)”? What is their effect on subsequent owners? What is the remedy?
WRITTEN PROMISES to do (maintain a fence) or not do something (not build multifamily dwellings) on land.
Real covenants run with the land by law, meaning subsequent owners may enforce or be burdened by the covenants.
Remedy is monetary.
What are the 5 requirements for a real covenant BURDEN to run with the land (that is, the covenant binds future owners as if the future owner expressly agreed to it)?
- Intent of the covenanting parties (that it be permanent)
- Notice (actual, inquiry, or record)
- Horizontal privity (ORIGINAL parties shared an interest or business relationship)
- Vertical privity (successor must hold entire interest held by convenantor)
- Touch and concern (the covenants require you to do or not do something with the land)
