Week 4 - Easements and Covenants 9/13/24 Flashcards
1
Q
Almost every easement is an _____ ________ because it lets you do something.
A
affirmative easement
2
Q
Parcel A has waterfront access and Parcel B does not. The owner of Parcel B may negotiate to create an _______ _______ whereby whoever owns parcel B has access to traverse the burdened estate to get to the water.
A
affirmative easement
3
Q
Most easements that we think of in common use - ________ or ________ across someone else’s land to get somewhere more easily.
A
driving or walking
4
Q
Most easements that we think of in common use - driving or walking across someone else’s land to get somewhere more easily. Those access easements are ________ ________.
A
affirmative easement
5
Q
Most easements that we think of in common use - driving or walking across someone else’s land to get somewhere more easily. Those access easements are affirmative easement. Written in the way I just described where whoever owns parcel b has the ability to cross parcel A irrespective of whomever owns it, then it is ________ __________ easement, that is ________ created.
A
appurtenant
affirmative
expressly
6
Q
2 examples of a _______ _________: where you have the ability to keep neighbor from building a two story structure anywhere on their property _________ _________ because you are stopping somebody from doing something.
________ ________ because you can stop people from developing and make sure the land stays green space.
A
negative easement
negative easement
conservation easement
7
Q
Most things are _______. Best if the parties stipulate to the precise location of the easement.
A
affirmative
8
Q
Example: A’s bedroom window is here, and A doesn’t want to have to keep blinds closed, so they want to _________ where the _________ is. A could leave the blinds open and not have B staring in the bedroom window. For improvement purposes if A wants to plant a flower garden or install a feature in their backyard or build a patio, they all need to happen in places where the easement is not. Don’t want bob swimming in the pool to get to the lake.
A
stipulate
easement
9
Q
How you could draft a document: church parking lot case
A
FSA OR Church could convey to Peterson and reserve an easement in favor of itself for the congregation to park there.
10
Q
When you own a parcel of land you typically don’t have an easement over your own property, you don’t even need an easement because it is yours.
What does this refer to?
A
Doctrine of merger
11
Q
Doctrine of merger when you own a parcel of land you typically don’t have an ________ over your _____ ______, you don’t need an easement because it is yours.
A
easement
own property
12
Q
In our negative easement picture from Tuesday, when O divided the water front property and sold the waterfront half to A, O had to then create a new interest that didn’t exist before which was an easement to cross parcel B to get to the newly created parcel A and then to the water. That is what they were trying to say. If later O were to reacquire parcel A, the _________ would go away because the ________ and _________ estates would merge.
A
easement
dominant
servient
13
Q
Doctrine of merger you don’t have an easement over your own stuff. You don’t need permission to walk across your own land. O didn’t need permission, then when O sold half of it he did. !!
A
!!
14
Q
Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1. ?
2.
3.
4.
A
- Fee Simple (perpetual duration)
15
Q
Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1.
2. ?
3.
4.
A
- For the life of a party
16
Q
Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1.
2.
3. ?
4.
A
- For a fixed duration
17
Q
Duration of Easements
How long can they last?
Comparable to possessory estates. An easement may be in:
1.
2.
3.
4. ?
A
- For the duration of a specified event, e.g., for the duration of a lease
18
Q
They can be perpetual in duration– the idea when we are creating easements we want to permanently ________ and ______ the land.
A
benefit and burden
19
Q
When bob is negotiating for waterfront access easement, he wants it to last in _________ because even after he dies, he wants it to be increased in value because of waterfront access and doesn’t want it to go away if A dies or sells to some other person.
Easements are in FSA – created to __________ exist.
A
perpetuity
perpetually
20
Q
Sometimes limited to the life of a person. You like bob and as long as he is alive, he gets to walk across parcel A.
A
Duration of Easement for the Life of a Party
21
Q
Amount of compensation that Alice, owner of Parcel A wants depends on the duration of the easement. If Alice’s property is going to be burdened in _________, she may expect a significantly higher return on that easement, then if it is just for the summer or just for bob’s lifetime.
A
perpetuity
22
Q
Might be that bob has rented out his house to his nephew for the summer and we want the nephew to have access to the waterfront for the three months of summer. Specific to the time frame of the lease.
A
For the duration of a specified event
23
Q
Important for you to pay attention to details. Drafted practice essay and there is a diagram that goes with it.
A
Duration of Easements
24
Q
A ________ is an oral or written permission given by an occupant of land allowing the licensee to do some act that would otherwise be a trespass.
A
license
25
A license is an ______ or _______ permission given by an occupant of land allowing the licensee to do some act that would otherwise be a trespass.
oral or written
26
A license is an oral or written permission given by an occupant of land allowing the licensee to do some act that would otherwise be a ______.
trespass
27
A license is an oral or written permission given by an _______ of ______ allowing the licensee to do some act that would otherwise be a trespass.
occupant of land
28
Also, a type of servitude. A _______ is often less formal than an easement. You don’t have to always have a writing.
license
29
Also, a type of servitude. A license is often less formal than an easement. You don’t have to always have a writing.
I like for everything to be in writing all the time because then we don’t have to argue what access rights are present, but licenses historically have been oral or written and allow someone to come onto someone’s land that would otherwise be a trespass. Special permission to come on my land when I could have pursed an action in trespass against you. True or False
True
30
Most ________ are revocable without the permission of the licensee.
licenses
31
Most licenses are revocable without the permission of the ______.
licensee
32
Example: neighbor named mason. Obsessed with Halloween. Into monsters. He was speech delayed but now his favorite words is decorated. Mason always has free _______ to come onto my property. When he got the sharpie marker and made mike Winooski on my driveway, I revoked his _______ that day. He was no longer welcome because it is a big house, and my kid is going to go to college, and I don’t need that big of a house and I will need to sell it. I was very giving of my license but not when he created artwork on my driveway.
license
license
33
All licenses are revocable.
A. True
B. False
B. False
That is false. There are some that are irrevocable. 2 situations where licenses become irrevocable
34
______ ____ _____ ______ – once upon a time I bought a house and they wouldn’t come down on the price, so I negotiated with them and got the sofa, and the lawn mower, turned out that my husband didn’t want the john deer he wanted the club cadet. To pay for the expensive cub cadet I had to sell the john deer that come with the house. I had a circular drive and pretended that it has a gate on each side, you can’t come on my land to inspect but I have parked it close to the road and put for sale with the phone number if interested just call. Pretend that Jackson calls because he is thinking about a vintage john deer and I open the gate and hand him the key and he test drives and says he would like to buy it, pretend he paid me 1000 dollars. You pay me and say I have to go home and put the trailer on my pick up and I say no problem re-lock the gate, Jackson comes back and he sees that the gate is locked and says he is here to pick up the lawn mower and I say your license is revoked, I can’t do that because his license is ______ _____ _______ ______so I have to let him back on the land to get the lawn mower.
coupled with an interest
coupled with ownership interest
35
Estoppel has how many elements?
3
36
Three Estoppel Elements:
1. ?
2.
3.
1. Representation - can be active or inactive
37
Three Estoppel Elements:
1.
2. ?
3.
2. Detrimental reliance upon the representation (or change in position on the part of the licensee)
38
Three Estoppel Elements:
1.
2.
3. ?
3. Conclusion that it would be inequitable or unfair if the representation was not enforced.
39
Three Estoppel Elements:
1.
2.
3.
1. Representation can be active or inactive
2. Detrimental reliance upon the representation (or change in position on the part of the licensee)
3. Conclusion that it would be inequitable or unfair if the representation was not enforced.
40
___________ made by the owner of the burdened property and that representation can be active or inactive.
Representation
41
Holbrook v. Taylor for example for estoppel elements. H needed to use the road to get to his property. If as Taylor goes by and waves and they exchange a wave I would call that an _________ __________. I see you I know you are using my road, and I am not stopping you from using my road.
inactive representation
42
______ __________ hi my name is Taylor I would like to use your road do I have permission to use your road and Holbrook says yes. Either way representation existed because H knew T was using the road and didn’t stop Taylor, till he did.
active representation
43
H v. T and T said I bought some land behind you, and I am going to build a house on it and H said great welcome to the neighborhood. T spends all this money to build a house and __________ ______ on H’s representation that it is okay to use the road. Why would you spend 25K to build a house and not have access to it. T expends all of his sources towards building a house and Taylor ________ ________.
detrimentally relies
detrimentally relies
44
Now that T has gone to all this trouble and spent all this money it would be ______ to not let him use the road anymore.
unfair
45
It is similar to an easement, but a _______ is, with two notable exceptions, ________.
license
revocable
46
A license may be found to be irrevocable based upon one of the following:
1. ?
2.
1.License coupled with an interest, i.e., a license that is identical to ownership rights to personal property located on the licensor’s land.
47
A license may be found to be irrevocable based upon one of the following:
1.
2. ?
2. Estoppel.
48
A license may be found to be irrevocable based upon one of the following:
1.
2.
1. License coupled with an interest, i.e., a license that is identical to ownership rights to personal property located on the licensor's land.
2. Estoppel.
49
A license that is identical to ownership rights to personal property located on the licensor's land.
license coupled with interest
50
Holbrook v. Taylor: The license to use the road case
*The use of the road to take in heavy equipment and supplies for the construction of improvements,
*The maintenance of the roadway,
*The erection of a $25K house,
*All occurring with Holbrook’s consent (tacit at least),
*Means that the license to use the roadway may not be ________.
revoked
51
Difference between AP and prescription is stealing the right to ______ and not ________the right to own the driveway.
USE
Possession
52
Difference in adverse possession and prescription is the time it takes and the __________ requirement.
exclusivity
53
In most instances with prescription talking about walking or using driveways or roads and exclusivity is not a requirement for ____________ In a majority of jurisdictions.
prescriptions
54
License write it down all the time because silly things can happen, and you want to know what access rights you have. My ex-husband hunted and for him it was all about finding a good hunting spot and getting access to it. You’d have to get permission to get to the land you hunted on, and you may want to negotiate for exclusive access to some extent. Only so many critters and the more people out in the woods the less chance you have of killing an animal. May want in writing permission to be there in case they are in the hospital and their son comes out with a gun you want to be able to show them the paper. Saves a lot of problems.
To the extent that you feel like you have an interest on the land (remove a natural resource or lawn mower) might be good to have it in writing.
Estoppel or license is coupled with an interest.
To avoid non-sense is to write it down. Better to be able to prove when some of the people are armed. No majority or minority.
!!
!!
55
EXPRESS EASEMENTS
EXPRESS CREATION:
1. ?
2.
3.
4.
1. Comply with statute of frauds
56
EXPRESS EASEMENTS
EXPRESS CREATION:
1.
2. ?
3.
4.
2. Describe rights and obligations
57
EXPRESS EASEMENTS
EXPRESS CREATION:
1.
2.
3. ?
4.
3. Specify intent to run with the land, and
58
EXPRESS EASEMENTS
EXPRESS CREATION:
1.
2.
3.
4. ?
4. Recordation
59
I expect you to be able to classify easement. 3 ways: affirmative v. negative, appurtenant v. in gross appurtenant easements we end up with 2 pieces of land a benefited and burdened parcel. Easement in gross we end up with a burdened parcel and benefited person or entity. First two ways to classify.
Third way to classify is how it was created. Written assessment coming up soon and midterm. If there is an easement in the fact pattern classify it. I have points in there for that. Classify based on all three categories.
!!!!
!!!
60
________ created easement are written down easement. That is what we mean by they comply _______ ____ _______.
Expressly
Statute of Frauds
61
They are going to ______ ____ ___ _____ __________ – easement to use someone else’s driveway to get to your property, driveways get potholes and need to be paved or graveled. Sometimes whether is bad and it might snow. Stipulate who has to shovel the snow are we paying in even years. Do I pay in even and you pay in odd? Or do we just split it 50/50.
Things we want to negotiate in advance, so we don’t have to fight about it later. Rain and dirt and gravel gets flooded, and we have to put down more gravel or professionally grated, who is going to pay for that?
describe the rights and obligations
62
Does this ____ ____ ____ ____ is this driveway easement a benefit to parcel B and burden to A or benefit to bob and burden to Alice. Easy to get distracted by people who are owning and occupying today, but we have to be forward thinking, we want it to benefit parcel B so B always has access. If we are Alice, we want more money. Depending on which side you represent you have to anticipate all of the normal maintenance and cost issues and divide those and when negotiating price how long is it going to last and is it a perpetual burden on the land.
run with the land
63
Anticipate all the maintenance and cost issues. How long is it going to last and is it a perpetual burden on the land?
What does this refer to?
Express Easement Creation
64
It is best t record it. If not recorded and not listed in the next person’s deed they might argue that they don’t have notice of it and they should not be encumbered by it and that could make your property a lot less valuable if there is no way to legally access it.
As long as you have written it down you have ______________ _______________.
expressly created
65
The two implied easements are strict necessity and prescriptive easements.
A. True
B. False
B. False
66
Prescriptive easements is not implied because you have to do ____________ acts to acquire a prescriptive easement.
affirmative
67
When you go to buy a house what is something that you or your home inspector might do, flush the toilets.
Flush the toilets and it goes down. Turn on the facets. Shower water pressure.
All with the premise that the water is going down and somewhere. !
!
68
IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1. ?
2.
3.
4.
1. One part of the land is serving another part and
69
IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2. ?
3.
4.
2. Such service exists and is apparent when the common owner divides the property and
70
IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2.
3. ?
4.
3. The parties reasonably expect the service to continue; and
71
IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2.
3.
4. ?
4. The service is reasonably necessary (although perhaps not strictly necessary); then
An easement implied from a prior existing use.
72
IMPLIED EASEMENTS
BY APPARENT EXISTING USE
Van Zandt v. Royster: The sewer case
Where:
1.
2.
3.
4.
1. One part of the land is serving another part; and
2. such service exists and is apparent when the common owner divides the property; and
3. The parties reasonably expect the service to continue; and
4. The service is reasonably necessary (although perhaps not strictly necessary); then
An easement implied from a prior existing use is created.
73
With regard to the standard of necessity needed for AEU easement most courts hold ________ necessity is how much necessity that you need.
reasonable
74
If the _______ and ______ tenements become owned by the same person then the doctrine of merger comes in and the easement goes away.
dominant
servient
75
If the dominant and servient tenements become owned by the same person then the _____ ____ _____ comes in and the easement goes away.
doctrine of merger
76
If the dominant and servient tenements become owned by the same person then the doctrine of merger comes in and the ________ goes away.
easement
77
Dominant and servient is like saying ________ and ________ and they become owned by the same person then the easement goes away.
benefit
burdened
78
Easement by ______ ______ -parcel that is land locked. You don’t have access to the main road so you get the right to drive across someone’s land because otherwise you can’t get out.
strict necessity
79
Weird quirk.
Easement by strict necessity -parcel that is land locked. You don’t have access to the main road so you get the right to drive across someone’s land because otherwise you can’t get out.
County puts in a new road – your easement by strict necessity will _____ ______. Idea you could only drive across someone else’s land because there was no other way and now there is another way. Easement by strict necessity works.
go away
80
Easements by _____ ______ _____ don’t work that way, even if the reasonable necessity goes away the easement is not extinguished.
apparent existing use
81
IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1. ?
2.
3.
1. Common ownership of property that is divided
82
IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1.
2. ?
3.
2. At the time of severance, use of that alleged burdened parcel is necessary in order to access or otherwise allow reasonable enjoyment of the alleged benefited parcel.
83
IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1.
2.
3. ?
3. The necessity is substantial (varies from state-to-state.
84
IMPLIED EASEMENTS
STRICT NECESSITY
To establish an easement by strict necessity you need:
1.
2.
3.
1. Common ownership of property that is divided
2. At the time of severance, use of that alleged burdened parcel is necessary in order to access or otherwise allow reasonable enjoyment of the alleged benefited parcel.
3. The necessity is substantial (varies from state to state).
85
One big parcel of land owned by one person who divided it up. At the time they divide it up the use of the alleged burdened parcel was necessary to access or allow reasonable enjoyment of the alleged benefited parcel.
At the time the true owner split everything up there was a problem that we would have to drive across the burdened parcel to get to the benefited parcel.
_________ is substantial. – described in a strict necessity easement will vary from state to state.
necessity
86
Compare _________ necessity for Apparent Existing Use to __________ necessity here in the strict necessity realm.
Reasonable
substantial
87
If you do it long enough and they don't stop you that could ______ into a __________ ________.
ripen
prescriptive easement
88
To establish an easement by _________one must establish the Hostile and adverse character of the user. Use by Express or implied permission or license cannot ripen into an easement by __________.
prescription
prescription
89
In Texas in 1950 you had to prove exclusivity in order to achieve a prescriptive easement. O is driving down the same road R it is not exclusive use it is shared use. The court here in
O v. R accepts the MINORITY rule with regard to ___________ as an element for prescription.
exclusivity
90
Majority rule- it is alright for the servient estate to utilize the driveway prescription is still possible. True of False.
True
91
If you had represented O, can you think of any arguments that we have discussed today that might work better?
The idea that license are irrevocable when they are coupled with an interest or an estoppel situation might have been a better course of action.
92
Strict Necessity Easement we have to have the necessity continue through the whole life of the easement if necessity goes away the easement goes away. True or False.
True
93
For an easement based on ______ _______, the necessity must exist at the moment the two estates are severed and must continue throughout the claimed life of the easement.
strict necessity
94
If the easement becomes unnecessary at some point because the claimant obtains some other access, the easement dissolves and is gone.
what does this refer to?
strict necessity
95
If the other access is later lost, the easement does not reappear but must be reacquired by purchase.
What does this refer to?
strict necessity
96
The doctrine of merger states that if benefited and burdened estates come under the ownership of a single person or entity, the easement is extinguished.
A. True
B. False
A. True
97
PRIVATE PRESCRIPTIVE EASEMENTS
Comparable to Adverse Possession, but:
1. ?
2.
1. obtaining use rights, rather than possessory rights in property
98
PRIVATE PRESCRIPTIVE EASEMENTS
Comparable to Adverse Possession, but:
1.
2.?
2. Exclusive element different
99
To establish _______ _______, one must show that the use was: open and notorious, continuous, adverse and under claim of right for the statutory period.
prescriptive right
100
To establish prescriptive right, one must show that the use was
1. ?
2.
3.
1. open and notorious
101
To establish prescriptive right, one must show that the use was
1.
2. ?
3.
2. continuous
102
To establish prescriptive right, one must show that the use was
1.
2.
3. ?
3. adverse and under a claim of right for the statutory period
103
To establish prescriptive right, one must show that the use was
1.
2.
3.
1. open and notorious,
2. continuous
3. adverse and under a claim of right for the statutory period
104
With private prescriptive easement you are getting _______ rights rather than possessory rights of the property, so you don’t own it you just have the right to use it.
use
105
Majority of jurisdictions No _________requirement. Okay if the driveway use you are trying to steal is the same that the true owner uses you can still steal the right to drive down it.
exclusivity
106
Prescriptive Easement – there rights are very narrow for example- my neighbor Angel – I cut across his yard to walk Annabelle to school because it was faster. He saw me looking out his Leni most mornings. He never stopped me. He may have figured what’s the harm.
If I had done that for the requisite statutory period to acquire a prescriptive easement could Annabelle when she turns 16 take the pickup truck, could she take her pickup through Angel’s backyard – no. because that it has to be comparable.
If I walked across with another kid that would have been fine. Still just two people walking. Her driving a truck is different and more damaging then to people walking quickly trying not to be seen.
What if I let her get a dirt bike? She couldn’t ride her dirt bike through there. Unicorn? Couldn’t ride through. That unicorn is likely to leave something behind, hooves damage.
If what you have stolen is a small number of people to walk that is all you get. All you stole was the limited right to walk across. If 112 people roll up that is a problem.
When I stole that it was just two of us. Be careful about prescriptive rights because they are narrow.
!!
!!
107
Question: Golf balls in your yard case. Will the country club acquire a prescriptive easement over your backyard?
Imagine that you are living the dream and bought the house on the golf course, you are a member of the country club and not everybody is Tiger Woods, they keep hitting their golf balls into your yard.
Looking out surveying the golf fashion and the people are trampling over the sod and running through the flowers and making dog mad. Annoying and sets off the back porch camera and you think someone is invading property and grab your gun, but it is just a bad golfer, will the Country club whom all the bad golfers belong to will they acquire a prescriptive easement over your back yard because members are coming into your yard?
they will.
108
How to stop the golfers from getting a prescriptive easement?
activated spray to spray water on them.
Fence is a civilized approach.
Questionable trespassers will be shot on site signs.
Super vicious dogs.
Freak them out to think they have heard somebody.
109
IMPLIED EASEMENTS
STRICT NECESSITY
Othen v. Rosier: The landlocked parcel case
Necessity alone, without reference to any relations between the respective owners of the land is not sufficient to create an implied easement by _______ necessity.
strict
110
In order to establish an easement of strict necessity, one must prove the following:
1. ?
2.
3.
common ownership
111
In order to establish an easement of strict necessity, one must prove the following:
1.
2. ?
3.
use is absolutely necessary (not merely convenient)
112
In order to establish an easement of strict necessity, one must prove the following:
1.
2.
3. ?
necessity existed at the time of the severance
113
Use by express or implied permission or license cannot ripen into an easement by prescription (Minority Rule) !
!
