Servitudes Flashcards
Easement
Non-possessory property interest
Affirmative easement
Right to do something on the land.
Negative easement
Serviant owner must refrain from doing something. Limited to LASSS: light, air, support, stream, scenic view.
Easement appurtenant
Tied to the land.Physical use/enjoyment of property. Passes automatically w/ dominant estate and servient estate unless BFP w/out notice.
Easement in gross
Only personal or commercial advantage. Non-transferable unless for commercial purpose.
Creation of an easement
PING
Prescription (COAH): NC adverse/hostile, or under claim or right, open/notorious/continuous and uninterrupted for 20 years, substantial identity of easment 20 years (7 years w/ color of title).
Implication (if division, implied from existing use if apparent and reasonably necessary to dominant land’s use/enjoyment). NC Easement by reservation must be strictly necessary. If grantor wants to keep easement, it must say so in conveyance bc grantee may not know how important the easement is.
Necessity (if division creates land lock): in NC may be recognized even if person claiming easement has a permissive right of way to a public road, if that right of way is not legally enforceable.
Grant > 1 year must be in writing
Termination
END CRAMP
Estoppel: servient land owner materially changes position in reasonable reliance that easement won’t be enforced
Necessity:
Destruction of servient land
Condemnation of serviet land by eminent domain
Release: in writing
Abandonment: physical action by holder expressing intent never to use again
Merger: if separate against later, doesn’t automatically revive.
Prescription: servient owner interferes
License
Privilege to enter land for specific purpose. Informal and freely revocable, unless estoppel - licensee invested substantial $/labor in reasonable reliance on continuation.
Profit
Permission to enter land to take soil. Same rules as easement.
Covenant
Contractual promise to do or not do something on land.
Damages
When does a burden run?
WITHVN
Writing (by original parties)
Intent (by orig parties to run)
Touch/Convern the land (provides some value to party)
Horizontal and Vertical privity (H: succession of esate between original parties, e.g. grantor/grantte; :/T; Debtor creditor) (V: non-hostile nexus)
Notice: actual/record/inquiry
In NC the standard for changed circumstances is extremely high. “Such a radical and fundamental nature” to practically destroy the essential objects and purposes of agreement. Must happen to the restricted area, not the surrounded area.
When does benefit run?
WITV
Writing
Intent
Touch/Concern
Veritical privity
Equitable servitude
Injunction to enforce burden
Creation: WITNES
Writing
Intent
Touch/Concern
Notice
Equitable servitude
Implied equitable servitude
Majority: general scheme by subdivider when sale began and notice.
Defenses: changed condition is so pervasive if affects entire area.
Adverse possession
Possession for statutory period of time can reipen into title if it’s COAH
Continuous
Open/Notorious
Actual & Exclusive
Hostile
Possessor’s state of mind is irrelevant. No a/p if owner disabled at inception. Tacking ok if privity between a/p.
NC: a/p against the state, except: public roads, streets, lanes, alleys, squares, public ways of any kind; and public trust rights to use and access the state’s water courses and beaches.
State owned land under color of title -21 years
State owned land no color of title 30 years
Non state owned land under color of title 7 years
Non state owned land no color of title 20 years
Color of title= legally adequate description and GF reliance
NC: presumes land use of another’s is permissive, must prove hostility.
NC: ouster of co-t can be actual (physical) or constructive (20 years w/out claim by other co-t)
Parent and child can’t a/p each other w/out clear definite and unequivocal assertion of exclusive ownership.
Betterment statute
A GF possessor who enters under color of title but fails to establish a/p may nonetheless be entitled to recover value for the permanent improvements made to the property.
Disabilities for a/p in NC
Infancy (under 18)
Insanity
Incompetency
Imprisonment is not recognized in NC
Once disability removed, 3 years to bring ejectment
Scope of a/p NC
If only possesses a portion of the land under color of title, constructive a/p gives them title to the whole property.
Lappage
When 2 people claim to constructively a/;p the same piece of property, the disputed area is known as the lappage.
If neither party has actually possessed the land over the lappage, the party w/ the better title gets it.
If one claimant is in actual possession of some or all of the lappage, he gets it.
If both claimants are in actual possession of the some of teh lappage, the claimant w/ the superior title gets all of teh lappage not possessed by the other.
NC cartway easement
Permits person to seek a judicial establishment of a road across another person’s land in order to do things like cut and remove timber, mine minerals, or maintain a cemetery.
If granted, owner of burdened estate is entitled to compensation.
NC water rights
Navigable waters are subject to the public trust doctrine. Held in trust for public and its rights are not subject to a/p.
Surface water drainage
Subject to reasonable use rule.
Balancing test that permits the person to reasonably use her land, even if this alters the flow of surface water unless it interference is harmful and unreasonable and causes substantial damage to another person.
Eminent domain
Recognized in NC
Power is held by state and shared w/: state agencies, local gov. , private entities wi/ a public purpose (RR & utility co.)
Public use: land can be condemned for public use or public benefit.
IF a whole parcel is take, just compensation is the fair market value at the time of the judicial proceeding. If only part is taken: just compensation is greater of fair market value of whole parcel less portion not taken, or FMV of actual property taken.
Is state agency consider special or general benefit that results.
