Servitudes

Question 1

Easement

Answer 1

Non-possessory property interest

Question 2

Affirmative easement

Answer 2

Right to do something on the land.

Question 3

Negative easement

Answer 3

Serviant owner must refrain from doing something. Limited to LASSS: light, air, support, stream, scenic view.

Question 4

Easement appurtenant

Answer 4

Tied to the land.Physical use/enjoyment of property. Passes automatically w/ dominant estate and servient estate unless BFP w/out notice.

Question 5

Easement in gross

Answer 5

Only personal or commercial advantage. Non-transferable unless for commercial purpose.

Question 6

Creation of an easement

Answer 6

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

Question 7

Termination

Answer 7

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

Question 8

License

Answer 8

Privilege to enter land for specific purpose. Informal and freely revocable, unless estoppel - licensee invested substantial $/labor in reasonable reliance on continuation.

Question 9

Profit

Answer 9

Permission to enter land to take soil. Same rules as easement.

Question 10

Covenant

Answer 10

Contractual promise to do or not do something on land.

Damages

Question 11

When does a burden run?

Answer 11

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.

Question 12

When does benefit run?

Answer 12

WITV

Writing

Intent

Touch/Concern

Veritical privity

Question 13

Equitable servitude

Answer 13

Injunction to enforce burden

Creation: WITNES

Writing

Intent

Touch/Concern

Notice

Equitable servitude

Question 14

Implied equitable servitude

Answer 14

Majority: general scheme by subdivider when sale began and notice.

Defenses: changed condition is so pervasive if affects entire area.

Question 15

Adverse possession

Answer 15

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.

Question 16

Betterment statute

Answer 16

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.

Question 17

Disabilities for a/p in NC

Answer 17

Infancy (under 18)
Insanity
Incompetency
Imprisonment is not recognized in NC

Once disability removed, 3 years to bring ejectment

Question 18

Scope of a/p NC

Answer 18

If only possesses a portion of the land under color of title, constructive a/p gives them title to the whole property.

Question 19

Lappage

Answer 19

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.

Question 20

NC cartway easement

Answer 20

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.

Question 21

NC water rights

Answer 21

Navigable waters are subject to the public trust doctrine. Held in trust for public and its rights are not subject to a/p.

Question 22

Surface water drainage

Answer 22

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.

Question 23

Eminent domain

Answer 23

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.