VI. Scope of Property - Rights and Restrictions

Question 1

Emanuel v. Hernandez (Private Use Planning)

Answer 1

If an easement implied by prior use did not arise at the moment the property was severed, a change in circumstances after the severance cannot create such an easement.

Hernandezes build a fence over a driveway, blocking access to the Emanuels garage.

Question 2

Berge v. State of Vermont (Private Use Planning)

Answer 2

Water access alone is generally not sufficient to defeat a claim for an easement by necessity.

State erected a gate, blocking gravel driveway, only access to Berge land was by water.

Question 3

O’Dell v. Stegall (Private Use Planning)

Answer 3

A person claiming a prescriptive easement has the burden of proving his use of the land was adverse.

O’Dell could not prove his use of gravel road was adverse since Stegalls objected to use of the land.

Question 4

Kienzle v. Myers (Private Use Planning)

Answer 4

An easement by estoppel exists where a property owner induces another to change position in reliance on a supposed easement, even if the property owner did not mislead the other party.

Question 5

Marcus Cable Associates v. Krohn (Private Use Planning)

Answer 5

An express easement may only be used for the purposes specified in the easement’s terms according to their common meaning.

Question 6

Preseault v. United States (Private Use Planning)

Answer 6

An easement is terminated if the easement is used in a way that is inconsistent with the easement’s original use and that was not reasonably foreseeable at the time the easement was established.

Question 7

Deep Water Brewing LLC v. Fairway Resources (Private Use Planning)

Answer 7

In Washington, a covenant runs with the land if (1) it is enforceable between the original parties; (2) it “touches” and “concerns” the land; (3) it binds successors in interest; (4) there is privity between the original parties to the covenant and present disputants; and (5) there is privity between the original parties.

Question 8

Gambrell v. Nivens (Private Use Planning)

Answer 8

A restrictive covenant binds remote grantees as an equitable servitude if the covenant touches and concerns the land, the original parties intended that the covenant run with the land, and the remote grantee had notice of the covenant.

Question 9

Shelley v. Kraemer (Private Use Planning)

Answer 9

State court enforcement of a racially restrictive covenant constitutes state action that violates the Equal Protection Clause of the Fourteenth Amendment.

Question 10

Nahrstedt v. Lakeside Village Condominium Association (Private Use Planning)

Answer 10

California law provides that common interest development use restrictions are enforceable unless unreasonable.

Question 11

Village of Euclid v. Amber Realty (Land Use Regulation)

Answer 11

Municipal zoning regulations are constitutional, unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.

Question 12

Trip Associates v. Mayor and City Council of Baltimore (Land Use Regulation)

Answer 12

Increasing the frequency of a valid, nonconforming use of property is a permissible intensification of the use rather than an unlawful expansion of the use.

Increased frequency of adult entertainment.

Question 13

Just v. Marinette County (Environmental)

Answer 13

A landowner does not have an absolute and unlimited right to change the essential, natural character of the land to use it for an unsuitable and unnatural purpose that would injure the rights of others.

Question 14

National Audobon Society v. Superior Court (Environmental)

Answer 14

The public-trust doctrine preserves the state’s sovereign authority to protect public-trust uses, thereby preventing owners from acquiring a vested right that would allow them to harm the land.

Question 15

Borden Ranch v. U.S. Army Corps of Engineers (Environmental)

Answer 15

Ripping up soil in a wetland and depositing it back into the wetland may constitute a discharge of pollutants under the Clean Water Act.

Question 16

United States v. Monsanto (Environmental - CERCLA)

Answer 16

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes a strict liability scheme on site owners and waste generators for the response costs of the release of hazardous waste and permits imposition of joint and several liability in cases of indivisible harm.

Question 17

Babbitt v. Sweet Home Chapter (Environmental-ESA)

Answer 17

The Secretary of the Interior possesses the authority pursuant to the Endangered Species Act (ESA) to define the term “harm” broadly to encompass direct injury or death to endangered animals and indirect actions including the destruction of a species’ habitat and breeding grounds.

Question 18

Juliana v. United States (Environmental-Public Trust doctrine)

Answer 18

Individuals have a fundamental constitutional right to a climate system capable of sustaining human life. (Under the public trust doctrine)

Question 19

Express easement (Appurtenant or in-gross)

Answer 19

• Express easement by grant: This arises when the servient owner grants an easement to the dominant owner.
• Express easement by reservation: This arises when the dominant owner grants the servient land to the servient owner, but retains or reserves an easement over that property.

Question 20

Implied Easement by prior use (SUN)

Answer 20

(1) Severance - severance of title to land held in common ownership
(2) Use:
* a. Existing and apparent use - easement must have been apparent, thus justifying the implication of intended use
* b. continuous use - prior use was continuous/permanent to justify continuation after severance

(3) Necessity - reasonable necessity for that use at the time of severance. (not possible for alternative access without substantial expenditure)

Scope of easement should be the same.

SUN

Question 21

Easement by necessity (SN)

Answer 21

(1) Severance - severance of title to land held in common ownership.
(2) Necessity - Majority view: “reasonable necessity” at time of severance. (easement would be beneficial to owner)
Traditional view: “strict necessity” at time of severance. (owner has no legal right of access to her land/property is inaccessible without it)
* Terminates when easement no longer necessary

Implied easement

Question 22

Prescriptive Easement (HOCA)

Answer 22

(1) open and notorious (O);
(2) adverse and hostile (H);
(3) continuous for statutory period (C);
(4) actual use
Limited to scope of adverse use that was basis of creation, generally not applicable to negative easements.

Similiar to adverse possession but no exclusivity required

Question 23

Easement by estoppel - Irrevocable license (CRK)

Answer 23

(1) Consent - a landowner allows another to use his land, thus creating a license;
(2) Reliance - the licensee relies in good faith on the license, usually by making physical improvements or by incurring significant costs; and
(3) Knowledge of reliance - the licensor knows or reasonably should expect such reliance will occur.

Injustice can be avoided only be recognizing the easement.

CRK

Question 24

Real Covenant (WITHVN or TWINVH)

Answer 24

(1) Writing - covenant must be in writing to be enforceable, compliant with SOF.
* Exception for equitable estoppel

(2) Intent - intent to bind successor (express language or implied intent if restriction on use of land)
(3) Touches and Concerns - Benefit “touches and concerns” land, usually physical aspect of land.
(4) Horizonal Privity - established if one party has an ownership interest in the other land. (Sold the land to them, easements, or tenants). A normal bare agreement does not count.
* [Mutual Interest/Landlord-tenant (& easements/co-tenants) (simultaneous privity)]
* Successive interest (include grantor/grantee) – almost all states apply
* Not required for benefits under modern rule. Only required for burdens.

(5) Vertical Privity - not established through adverse possession.
* Prevailing approach - transfer of same/lesser interest required for benefit to run
* Successor takes “entire estate”
* Excludes successor to lesser estate (e.g. tenant) and adverse possessor

(6) Notice - successor has notice of covenant/Recording Acts. No notice required for benefits, only burdens.

Question 25

Equitable Servitudes (TWIN)

Answer 25

(1) Touch & Concern - both benefit and burden must touch and concern the land
(2) Writing - must be in writing to be enforceable. SOF or a “Common Plan”(restrictions by developer on subdivison)
*Exception for equitable estoppel

(3) Intent - Original covenanting parties intended for promise to be enforceable by/against subsequent purchasers
(4) Notice - Successors must have legally sufficient notice of equitable servitude at time of purchase. Notice not required for benefits, only burdens.

Actual notice: subjective knowledge arising where knowledge of restriction is “brought home/told” to purchaser
Constructive notice (record): where restriction is properly recorded in prior conveyance in chain of title
Inquiry notice: where purchaser is aware of circumstances that would prompt a reasonable person in his position to investigate matters that might have substantial impact on his affairs

• Burden runs to all on land except BFPs w/o notice
• Not required for donees (people got prop for free)
• Remedy is injunction (not damages) – KEY ISSUE for litigants

Question 26

License vs. Easement

Answer 26

• License is a permission to use land for temporary, particular purpose
• License v. Easement depends on intent of parties:
  1. Manner in which right created
  1. Nature of right created
  1. Duration of right
  1. Amount of consideration given for right
  1. Whether there is a reservation of power to revoke right

Question 27

Scope of Easement (SAMN)

Answer 27

• Scope of Easement determined by [presumed] intent of parties, based on its purpose (interpretation issue)
• Allows Normal Development (unless it creates an unreasonable burden)
  “manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude”
• Misuse of easement if used to benefit land other than the dominant parcel [but see Brown v. Voss]
• Relocation of easement – usually requires agreement but Restatements suggest “reasonableness” standard, ie. No significant lessening in utility, no significantly increased burden on holder, or frustrate the purpose of easement

Question 28

Easement Appurtenant or In-Gross

Answer 28

• Appurtenant runs with the property/land and is transferred. (Permanent)
• In-Gross confers a personal or commercial benefit on its holder. Not transferrable unless it is for commercial purpose such as a utility line.

Question 29

Negative Easements (LARIC)

Answer 29

• Light - Blockage of light (express)
• Air - Blockage of air (express)
• Removal - Removal of subjacent/lateral building support
• Interference - Interference with artificial streams (water)
• Conservation - Conservation easements are relatively recent creations by legislatures (nature?)

Negative easements prevent land from being used for something.

Question 30

License

Answer 30

Form of informal permission (“personal privilege”)
* Temporary permission (not an interest in land)
* May be revoked at any time

Question 31

SOF exceptions

Answer 31

Part Performance
1. Payment of all or part of purchase price, and
2. Taking possession,
3. Making improvements
- Many jurisdiction require possession + (payment or improvements)
- Some jurisdiction require payment + (possession or improvements)

Equitable estoppel
- Party has been induced by other to substantially change position in justifiable reliance on other’s representations
- Serious or irreparable injury would result