Week 4 - Easements and Covenants Flashcards
1
Q
The types of servitudes are:
1. ?
2.
3.
4.
A
- Easements
1
Q
____________ are private agreements which deal with the use of land, or restrictions on the use of land.
A
Servitudes
2
Q
The types of servitudes are:
1.
2. ?
3.
4.
A
Profits (minor type)
3
Q
The types of servitudes are:
1.
2.
3. ?
4.
A
- Licenses (minor type)
4
Q
The types of servitudes are:
1.
2.
3.
4. ?
A
- Covenants
5
Q
There are 2 types of covenants:
1. ?
2.
A
Real Covenants (enforceable at law)
6
Q
There are 2 types of covenants:
1.
2. ?
A
Equitable Servitudes (enforceable in equity)
7
Q
_____________ are non-possessory rights to use the land.
A
servitudes
8
Q
Servitudes are _______________ rights to use the land.
A
non-possessory
9
Q
__________ are non-possessory rights to use the land. not going to stay on it all the time, you just get the right to use it.
A
Servitudes
10
Q
__________ = right to take stuff off the land.
A
profits
11
Q
Profits are the ________ to ______ ______ ______ _______ _______.
A
right to take stuff off the land
12
Q
A special type of easement that allows you to go on someone else’s land and remove something from it. What type?
A
profit
13
Q
A profit is a special type of ____________ that allows you to go on someone else’s land and ______ __________ from it.
A
easement
remove something
14
Q
Typically, the something that you are removing off of someone’s land in a profit is what?
A
natural resource
15
Q
________ is the right to go on someone else’s land and take a natural resource off of it.
A
profit
16
Q
Profit is the right to go on someone else’s land and take a _______ ________ off of it.
A
natural resource
17
Q
Oil
A
natural resource
18
Q
gas
A
natural resource
19
Q
sand
A
natural resource
20
Q
gravel
A
natural resource
21
Q
timber
A
natural resource
22
Q
wild game
A
natural resource
23
Q
Fish
A
natural resource
24
minerals
natural resource
25
Profit is the right to go on someone else's land and take a natural resource off of it. Examples include:
1.
2.
3.
4.
5.
6.
7.
8.
9.
1. coal
2. oil
3. gas
4. gravel
5. sand
6. timber
7. wild game
8. fish
9. minerals
26
Lots of things that you can get the ability go on someone's land and remove and those things are called __________.
profits
27
A profit is an easement that lets you go on someone else's land and remove a ________ ________.
natural resource
28
Sometimes they feel less permanent than easements. It is still permission to go on someone’s land but generally _________ are revocable.
licenses
29
I can give you permission to come on my land but if you make me mad, I can make you leave. With an ________ I have to let you on my land because that has been agreed upon in a legal document. _________ most of the time are revocable but a couple instances where they are not.
easement
licenses
30
Real covenants are enforceable at _______.
law
31
Real covenants are enforceable at law which means _______ ________.
money damages
32
Equitable servitudes which are enforceable in ________.
equity
33
Equitable servitude's which are enforceable in equity means you would get an ________ when that goes wrong.
injunction
34
Servitudes generally involve _______ (servant estates) and _________ (dominant estates) parcels.
BURDENED
BENEFITED
35
_________ generally involve BURDENED (servant estates) and BENEFITED (dominant estates) parcels.
Servitudes
36
Burdened: allows the _____, ________ or _________ __________.
use, restriction, or affirmative obligations
37
Benefited: right to ______ _____, ______ or ________ with regard to the burdened property.
enforce use
restriction
obligation
38
The _____ _______ is the same as the burdened estate.
Servient estate
39
The _______ _______ is the same as benefited estate.
dominant estate
40
Alice owns A.
Alice enjoys lake frontage. She has the waterfront property. Alice’s property is more valuable than Bob’s because Alice has the good view and Alice has access to the lake anytime, she wants.
Bob goes to Alice and Bob says I like swimming in the lake, and it would be inconvenient for me to get in my car and drive across the lake to the public access point. Do you think I could have permission to walk across your land to the lake? Alice says let’s make it legal.
They draw up an easement that allows Bob access to the lake.
Bob’s easement allows him to walk in a specified path to get to the lake.
Every morning Alice is drinking coffee and looking at the lake and Bob decides to take an early morning swim.
Bob’s favorite swimwear is a leopard speedo and Bob does not have a gym membership. Bob also has never thought of waxing. The image Alice gets every morning with her coffee as Bob streaks across her lawn to get to the lake. All of Bob is visible except the speedo.
This is why _______ property has the ______, but ______ property has the ______.
Alice's property has the Burden
Bob's property has the Benefit
41
Now if this is a validly drafted easement and gets recorded at the public records office and it is drafted in such a way that parcel B whomever owns parcel B has the ability to walk across Parcel A to get to the lake.
It could be a burden to A because if later A tries to sell and the people buying find out there is an easement and whomever owns parcel B can go across it, that is an encumbrance to have somebody that you don’t know or don’t like walking across your land every day. Why would Alice agree to allow Bob to do that?
Usually, you get paid.
42
Could be financially lucrative. In assessing the price, Alice needs to think about the fact that she could be permanently __________ parcel A.
encumbering
43
B is smart and he wants to have the easement drafted so that it is _________ to parcel B because if it is when Bob goes to sell, Bob’s property just got a whole lot more valuable because you can advertise private waterfront access.
benefited
44
If it is connected to the land, it is ________ _______.
appurtenant easement
45
Alice owns A.
Alice enjoys lake frontage. She has the waterfront property. Alice’s property is more valuable than Bob’s because Alice has the good view and Alice has access to the lake anytime, she wants.
Bob goes to Alice and Bob says I like swimming in the lake, and it would be inconvenient for me to get in my car and drive across the lake to the public access point. Do you think I could have permission to walk across your land to the lake? Alice says let’s make it legal.
They draw up an easement that allows Bob access to the lake.
Bob’s easement allows him to walk in a specified path to get to the lake.
Every morning Alice is drinking coffee and looking at the lake and Bob decides to take an early morning swim.
Bob’s favorite swimwear is a leopard speedo and Bob does not have a gym membership. Bob also has never thought of waxing. The image Alice gets every morning with her coffee as Bob streaks across her lawn to get to the lake. All of Bob is visible except the speedo.
This is an _________ easement because it lets Bob do something he couldn’t otherwise do. It is an __________ easement because we’ve got 2 parcels of land a burdened parcel and a benefited parcel and it is an ________ easement because it was written down.
affirmative
appurtenant
express
46
Bob would pay Alice and the burden would continue to run to parcel A even if Alice sold if it is written parcel B to parcel A and benefit would continue to run to B. one-time payment when between private parties.
You may buy from Bob later and you get the benefit of the waterfront access, but you don’t have to pay because Bob has already done that. Bob will get a return on the investment because you pay him for waterfront access.
This can be drafted in other ways.
!!
!!
47
Alice could say Bob you are my friend, I will let you walk across but I don’t like your kids. If you die and leave your house to your kids, I don’t want them to walk across.
Alice might choose to create an _______ ____ ______ that says bob can walk across the property.
easement in gross
48
Time limits on it. You might say Bob I think I am only going to own this land for 3 years. For 3 years you can walk across. You can set ________ or set it to bob can walk across until bob dies when bob dies the easement dies too. Connected to the land or person and how long it lasts. You can personalize your easement.
durations
49
Is the easement drafted to benefit bob or to benefit parcel A? That is the relevant question. Parcel A is burdened irrespective because somebody is walking across it. The question is in determining ________ or ___ _______ is the benefit to bob or to parcel B?
appurtenant
in gross
50
Easement ____ _______ is where the benefit is to a person or entity and the burden is to a piece of land.
in gross
51
Easement in gross is where the ______ is to a person or entity and the _______ is to a piece of land.
benefit
burden
52
Ocean
Christy’s House – Florida
I live in TN. I am happy because I am going to the beach.
When I go to the beach, I don’t want to go where all of you are going. I’d rather go to Christy’s house. Christy says to me why don’t you come stay at the house and go to the beach, why bother with the hotel thing. I use Christy as my example for an _____ ____ ______.
easement in gross
53
I live in TN. I am happy because I am going to the beach.
When I go to the beach, I don’t want to go where all of you are going. I’d rather go to Christy’s house. Christy says to me why don’t you come stay at the house and go to the beach, why bother with the hotel thing. I use Christy as my example for an easement in gross. Christy’s property is going to be burdened by me and my tankini finding their way to the beach. Christy has the _______ and I have the _______.
burden
benefit
This is a benefit to me personally because it does nothing for the value of my property in Tn. This is what an easement in gross looks like.
54
In the previous example (Alice and Bob), it was an appurtenant easement because the benefit was to parcel B. But here, the benefit is to me. (Christy/ Swanson). True or False.
True
55
Example: I don’t own this building, but I have the right to walk up and down this path and if this were across someone’s land, we would call that an easement. I have the right to walk up and down this path because I’m employed. You have a right because a student. But, if talking about land that I own, KUB has the right to walk in and do some work and leave. They are not allowed to put up a shed and move in because they are not allowed to __________, they are just allowed to use it.
possess
56
With a _______ you are allowed to go in, remove the natural resource, and come out. There may be stipulations in the easement granting the profit that says whether or not the equipment for removing the natural resource can remain their overnight or however long but the people cannot live there.
profit
57
______ rights are different than possessory rights.
use
58
If Bob walks across Alice’s land to get access to the lake Alice’s land is burdened?
A. True
B. False
A. True
59
ISSUES TO KEEP IN MIND FOR EACH TYPE OF SERVITUDE
* How is the servitude created?
* What is its general nature?
* What is its duration?
* Is it transferable / divisible / run with the land?
* What is its scope, i.e., what property is covered, what rights associated with the servitude?
* How may it be modified or terminated?
!!
!!
60
Each easement can (and will) be classified from each of the three categories below.
Easements can be classified as:
1. ?
2.
3.
1. Affirmative or Negative
61
Each easement can (and will) be classified from each of the three categories below.
Easements can be classified as:
1.
2.
3. ?
By how they are created
62
Each easement can (and will) be classified from each of the three categories below.
Easements can be classified as:
1.
2. ?
3.
Appurtenant or In Gross
63
Each easement can (and will) be classified from each of the three categories below.
Easements can be classified as:
1.
2.
3.
1. Affirmative or Negative
2. Appurtenant or In Gross
3. By how they are created
64
Easements can be classified by how they are created:
1. ?
2.
3.
4.
1. Expressly written down or
65
Easements can be classified by how they are created:
1.
2. ?
3.
4.
2. Implied and Created by Strict Necessity
66
Easements can be classified by how they are created:
1.
2.
3. ?
4.
Implied and created by apparent existing use; or
67
Easements can be classified by how they are created:
1.
2.
3.
4. ?
4. Stolen by prescription
68
Easements can be classified by how they are created:
1.
2.
3.
4.
1. Expressly written down or
2. Implied and created by strict necessity or
3. Implied and created by apparent existing use or
4. stolen by prescription
69
Negative easements prohibit the landowner from doing something that they are otherwise entitled to do.
A. True
B. False
A. True
70
When B moves in he can see the water from the upstairs of the house. If B can advertise waterfront view it is worth more. You can look out your master bedroom window and see the ocean.
Well, is there anything to stop A from building a two- story structure on their land other than zoning codes, or HOA. it would be foolish to assume that this status quo is going to remain forever. If you represent B, you might say you know it would really help you out if you could get A to enter into a __________ _________.
negative easement
71
When B moves in he can see the water from the upstairs of the house. If B can advertise waterfront view it is worth more. You can look out your master bedroom window and see the ocean.
Well, is there anything to stop A from building a two- story structure on their land other than zoning codes, or HOA. it would be foolish to assume that this status quo is going to remain forever. If you represent B, you might say you know it would really help you out if you could get A to enter into a negative easement.
B will say what is that? Because maybe B just likes looking at the water and doesn’t want to go in it and they think an easement is just the right to walk across. They don’t want the right to walk across they just like looking at the water out the window.
You tell B, a negative easement will protect
and preserve your view in _________.
perpetuity
72
Agreement that A would sign that no structure more than 1 story tall would ever be built on Parcel A (encumbrance that runs with the land.)
What type of easement is this?
negative easement
73
A negative easement gives the ________ to parcel A and the ________ to parcel B.
It makes it so that A can never build above a certain height.
burden
benefit
74
A _______ _______ gives the burden to parcel A and the benefit to parcel B. It makes it so that A can never build above a certain height.
negative easement
75
If you are Bob you want to make the language, say that ________ owns parcel A, no one can ever build a two-story parcel building on Parcel A. Bob will pay Alice money for that. Parcel B is always going to have a waterfront view from the second story. Expensive ask but it is possible.
whoever
76
Ex. Mom bought property on the lake. Vacant lot was on the Chesapeake Bay. Excepted because she paid lakefront price, but she also had Chesapeake Bay view. It was great. The vacant parcel was purchased, and they built a house, and it wasn’t in the way but then they built a two-story massive garage exactly in the sightline to the bay. If your client wants to protect their view, they may later decide to build an in-law suite or a barn or they may die, and the kids may have something they want to do even if it isn’t a problem now. Nothing my mom could do because she didn't have a ________ ________.
negative easement
77
Example of a negative easement: __________ easement.
conservation
78
_____________ easements are utilized to encourage wildlife habitats or encourage farming. A lot of jurisdictions are getting rid of green space and wildlife areas because the owners are enticed by the money they get if a new condo comes in.
Land conservancies whose goal is to keep part of the planet green they will approach people and say you own land it would be nice if you didn’t build on it. Sometimes people are amenable to that. Sometimes greenspace is able to be preserved. Tax benefits. Idea is what is negative about it, is you are agreeing not to build anything on it so that it can stay as close to its natural space as possible.
conservation
79
Negative easements are typically easements ____ _______, but they can be appurtenant easements depending upon how you draft it.
in gross
80
_____________: benefited property has the right to use the burdened property.
affirmative
81
Affirmative: ________ property has the right to use the ________ property.
benefited
burdened
82
________: the benefited property, person, or entity has the right to enforce a restriction on the use of the burdened property.
Negative
83
Negative: the benefited ______,_______ or _______ has the right to enforce a restriction on the use of the burdened property.
property, person, or entity
84
Negative: the ________ property, person, or entity has the right to enforce a restriction on the use of the _________ property.
benefited
burdened
85
The owner of parcel B had the right to walk across parcel A to get to the lake. Example of _________ easement.
affirmative
86
What are prescriptive easements similar to (from Property 1)?
Adverse possession. Prescriptive easement is when you ______ an _______.
steal an easement
87
Easement Classifications: _________, _________ & _________ creation.
express
implied
prescriptive
88
Easement can be created by implication based:
1.
2.
1. based on strict necessity
2. based upon the rule of apparent existing use
89
Standard easement is __________ created which means that it is written down and signed and often it is recorded at the public records office at the county level.
expressly
90
Most easements are ___________.
express
91
Strict necessity comes up when something is ______ ______.
land locked
92
I bought land and didn’t realize there was a way to get out, so I drive across someone else’s land to get to the road. That might be an implied easement by _______ ________.
strict necessity
93
Case for apparent existing use implied easement – underground sewer line. Goes across various properties because the city’s sewer line didn’t go to each house. It was fine until it backed up into someone’s basement. Easement by apparent existing use. !
!
94
Ex. Where Alice and Bob and the waterfront parcel. Bob may walk across path every day and that may be how Alice does to. Does the fact that Alice is walking across the path mean that bob can’t steal the right to walk across it just because Alice is walking the same path? Most courts say no because in most jurisdictions there is no _______________ requirement for prescriptive easement.
exclusivity
95
A lot of easement issues are driveways.
Driveways. Does the fact that the true owner drives on it every day mean that you can’t stela the right to drive on the driveway? no it doesn’t in most places you can still steal the right to drive down the driveway if you do it for long enough and comply with other elements. !
!
96
Easements in Gross have both a benefited and a burdened parcel of land involved.
A. True
B. False
B. False
Benefit is to a person or entity and burden is to the piece of land.
97
___________: involves a burdened property and a benefited property, generally runs with the land, can be negative or affirmative, courts favor this type.
Appurtenant
98
______ ________: involves only the burdened property, instead of having a benefited property, you have a benefited person or entity, may be negative or affirmative.
In Gross
99
Appurtenant: involves a _________ ________ and a ___________ __________, generally runs with the land, can be negative or affirmative, courts favor this type.
burdened property
benefited property
100
Appurtenant: involves a burdened property and a benefited property, generally ______ with the ______, can be ________ or _______, courts favor this type.
run with the land
negative or affirmative
101
In Gross: involves only the _______ _______, instead of having a benefited property, you have a benefited _______ or ______, may be negative or affirmative.
burdened property
person or entity
102
Courts favor _________ _________. Two pieces of land. One is benefited and one is burdened.
appurtenant easements
103
_____ _________ one piece of land, the burdened piece. The benefit is to a person or entity.
Can be Negative (conservation) or affirmative (Christy’s).
in- gross
104
With these two types of easements, it is important to know whether or not they would run with the land or how they are transferable. If I have an appurtenant easement to walk across my neighbor’s land to get somewhere, if one of us dies it has been written to where our successors and assigns inherit the benefited pr burdened property. If I were to pass, Annabelle would have the right to walk across it because you can transfer that type of easement.
With an easement in gross you have to see whether or not it was written to where it was transferrable to the successor of the benefited party.
If I pass, does Christy want Annabelle to walk across her land to get to the beach or was that just for me? Just for me because I am her friend. Or does she want my daughter to parade in a bikini? She might not she has 5 sons that might cause an issue.
!!
!!
105
