Servitudes Flashcards
Termination of Easement
Mr Capend
- Merger of Dominant & Servient
- Release (written)
- Condemnation
- Abandonment
- Prescription
- Estoppel
- Necessity
- Destruction
Requirements of abandonment of easement
- Cessation of use +
2. Intent to abandon
Types of easements
- Easement in gross (to 3rd party)
- only one land involved
- if it is commercial, is alienable
- Easement appurtenant (to benefit an owner of land)
- two pieces of land
- freely alienable
Covenant against encumbrances
Representation that there are no easements or liens burdening the realty
* If there are, covenant breach and liability against covenantor
Exceptions of transfer of easements
Personal easement in gross
- benefit is not transferable - Bonafide purchaser (if he didn't know of easement) * All other easements transfer automatically
Requirements for creation of easement (PING)
- Prescription
- Implication
- Necessity
- Grant - In writing (statute of frauds) mandatory for negative easement
Requisites of prescription (CHAO)
C ontinous
H ostile
A dverse
O pen and notorious
Creation of Easement by Implication
- Apparent previous use
- expected to continue
- reasonably necessary
Creation of Easement by Necessity
- Once common ownership of both lands
- strictly necessary
(i.e. landowner divides it’s land in 2 lots, one of them is locked out by mountains)
If property is landlocked, even if can “acquire” other access.
What is a Profit (servitude)
Is the permission to use someone’s land to extract materials (coal, oil, wood, etc.)
What is a license?
- Is a REVOCABLE easement
- is permission to use others land for a specific purpose
- is a verbal easement (that doesn’t satisfy Statute of Frauds)
- If licensee expend money in the land is an easement by estoppel
What cause a irrevocable license
- Grantee of license
- invests money on the land
- to use others land
- License is transformed into Easement (by Estoppel)
What is a Covenant
- A promise related to land
- Found in a contract or deed
Termination of Covenant
Mr Capace
M erger R elease C ondemnation A bandonment P rescription A greement C hange of conditions E stoppel
Enforceability of covenants
1) Real Covenants
- Monetary damages (or)
- Monetary damages &
Injunction
2) Equitable servitude
- Injunction
Requirements to Transfer BURDEN of real covenant (WITHVN)
W riting I ntent T ouch and Concern H orizontal privity V ertical privity N otice
Types of Notice of Covenants
(1) Actual - In deed
(2) Constructive:
Inquiry - Reasonable inquiry
Record - covenant filed
Requirements to Transfer BENEFIT of real covenant (WITV)
W riting
I ntent
T ouch and Concern -same land
V ertical Privity
What happens if a covenant don’t transfer as a real covenant due lack of requirements
Can transfer as Equitable Servitude
- For Burden (WITN)
- For Benefit (WIT)
What is General Scheme
- Equitable Servitude
- Only need Notice
- when is obvious developer planned certain restrictions on property by looking at neighborhood
Doctrine by Estoppel by Deed
To Validate Warranty Deed Deed Executed/delivered by grantor When grantor didn’t have title to land But represented that he did If he later acquired such title
Privity of estate as assignee
Possession of premises
Liable for rent w/asignor
Duty of Life Tenant
Pay property taxes (until rental value)
Pay interest on encumbrances
Not commit waste (harm future interest holders)
Rule of Marshaling
Equitable doctrine
Requires a senior creditor, having two or more funds to satisfy its debt, to dispose of the fund not available to a junior creditor.
When is a lease a Sublease?
Assign less time than remaining lease (or)
Part of the premises
If tenant retains no interest
Sublessee NOT liable for payment of rent
