5) Rights in Land

Question 1

ways to dictate how land is to be used (kinds)

Answer 1

1) covenant
2) equitable servitude
3) implied reciprocal servitude

Question 2

ways to make affirmative use of the land (kinds)

Answer 2

1) easement
2) profit
3) license

Question 3

covenant vs equitable servitude

Answer 3

covenant –> damage

equitable servitude –> injunction

Question 4

implied reciprocal servitude: def

Answer 4

owner sells lots w restrictions that benefit the land he retained, then owner can’t violate same restriction. Becomes mutual, benefits both parties

Question 5

covenants: elements: mnemonic

Answer 5

PINT

Question 6

covenants: elements: list

Answer 6

1) Privity
2) Intent that covenant run w the land
3) Notice
4) Touch + Concern the land
(but start analysis w T+C)

Question 7

touch + concern the land: def

Answer 7

must have both:
dominant estate (benefitted parcel): must increase the use + enjoyment of the dominant estate

servient estate (burdened parcel): restriction must reduce the use + enjoyment of the servient estate

Question 8

affirmative restriction: def

Answer 8

affirmatively requires burdened estate to do something (ex. maintain the fense)

Question 9

negative restriction: def

Answer 9

requires burdened estate to NOT do something (can’t build anyting other than an SFD)

Question 10

intent: def

Answer 10

writing must include language that shows the parties intent for the covenant to run w the land (to bind future owners)

*majority: if T+C, then I is presumed

Question 11

notice: def

Answer 11

required ONLY for servient estate – current owners of servient estate must have taken w notice of the restriction

Question 12

notice: kinds (for any property q)

Answer 12

1) actual
2) constructive
3) inquiry

Question 13

actual notice: def

Answer 13

what you actually know

Question 14

constructive notice: def

Answer 14

recordation

Question 15

inquiry notice: def

Answer 15

you learn enough info that would lead a RP to inquire further, but you failed to do so

Question 16

privity: def

Answer 16

need BOTH:
horizontal +
vertical

Question 17

horizontal privity: def

Answer 17

privity of k taht exists btwn original covenantor + covenantee

must be in connection w the land, such as:
LL/T
grantor/grantee
mortgagor/mortgagee

(just 2 owners making a k about their land wouldn’t count!)

Question 18

vertical privity: def

Answer 18

privity of estate. Rship btwn orig party to running covenant + successor in interest

for servient estate, ONLY exists where servient estate owner transfers ALL interest to the new owner! So a life estate or term of years doesn’t count (on dominant side can be just some)

Question 19

equitable servitude: elements

Answer 19

1) T+C
2) intent
3) Notice

NOT privity!

Question 20

SOF + ways to dictate use of land

Answer 20

SOF applies to:
covenants
equitable servitudes

but does not apply to:
implied reciprocal servitudes

Question 21

implied reciprocal servitude: easiest way to create

Answer 21

CC&Rs: covenants, conditions, + restrictions: filed declaration

Question 22

implied resciprocal servitude: elements

Answer 22

1) wrting NOT required
2) only works for negative restrictions (not affirmative)
3) restriction must be part of COMMON SCHEME OR PLAN for dvt of area +
4) current owner must TAKE WITH some sort of NOTICE (3 kinds ) of the restriction

Question 23

common scheme: factors

Answer 23

1) large % of lots are expressly burdened
2) oral representations to buyers
3) statements in ads to buyers
4) recorded plat maps or other decs

Question 24

implied reciprocal servitude: who can enforce?

Answer 24

1) original grantor
2) any purchaser affected by the common scheme
3) condo or subdivision association, for common land conveyed to it

Question 25

how to terminate covenant or equitable servitude

Answer 25

1) written release (must be from benefitting party) 2) merger 3) abandonment 4) estoppel 5) changed circs so reason behind restriction is no longer valid (works for restrictions only)

Question 26

merger: def

Answer 26

dominant + servient estates come under common ownership

Question 27

abandonment: def

Answer 27

owner abandons enforcement + something more that shows intent to abandon (words or conduct)

Question 28

estoppel: def

Answer 28

servient estate led to believe wouldn't be enforced + detrimentally relies

Question 29

who can enforce covenant/equitable servitude?

Answer 29

property owners assns!

Question 30

easements: analysis

Answer 30

1) properly created? 2) scope? 3) termianted?

Question 31

servient estate: def

Answer 31

estate burdened by the easement

Question 32

dominant estate: def

Answer 32

estate benefitted by the easement (don't have to have one!)

Question 33

easement appurtenant: def

Answer 33

benefits a parcel of land, has a dominant estate

Question 34

estaement in gross: def

Answer 34

easement that benefits a person or entity rather than a piece of land -- so there is no dominant estate

Question 35

ways to create an easement

Answer 35

1) expressly 2) by implication (3 kinds) 3) by prescription

Question 36

express easement: def

Answer 36

writing that satisfies the SOF

Question 37

easement b implication: kinds

Answer 37

1) prior use 2) necessity 3) by plat

Question 38

easment by prior use: elements

Answer 38

1) common ownership of dominant + servient estates prior to severance 2) prior use (quasi-easement) prior to severance 3) prior use was apparent or coudl be discovered upon a reasonable inspection + 4) reasonable necessity

Question 39

easement by necessity: elements

Answer 39

1) common ownership of dominant + servient estate prior to severance 2) strict or absolute necessity

Question 40

easement by plat: def

Answer 40

buyer in a platted subdivision acquires an implied easement to use streets, alleys, parks in the subdivision

Question 41

easement by prescription: elements

Answer 41

(c AP) 1) actually, openly, notoriously, exclusively uses the land 2) w hostile intent 3) for statutory period (CL 20 years)

Question 42

scope of easement: express

Answer 42

limited to what the express easement states the use can be

Question 43

scope of easement: not express (or doesn't say)

Answer 43

can be used to the extent reasonably necessary to do so (includes simple subdivisions, but not surcharging the easement)

Question 44

surcharging the easement: def

Answer 44

overuse of the easement

Question 45

surcharging the easement: result

Answer 45

does not terminate the easement but, servient estate can sue for injunction or damages

Question 46

maintaining the easement: rule

Answer 46

easement holder (dominant estate) may do what is reasonably necessary to maintain the easement, even if it interferes w servient owner's use of his property

Question 47

termination of easements: kinds

Answer 47

1) nobody's fault 2) actions of easement holder 3) actions of servient estate

Question 48

termination of easements: nobody's fault: kinds

Answer 48

1) destruction of servient estate | 2) end of necessity

Question 49

termination: nobody's fault: destruction of servient estate: rule

Answer 49

destruction of servient estate will terminate an easement UNLESS owner of the servient estate intentionally caused the destruction

Question 50

termination: nobody's fault: end of necessity: rule

Answer 50

where easement was created by necessity only. If necessity ends, the easement ends.

Question 51

termination of e.: from actions of easement holder: Kinds

Answer 51

1) merger 2) written relase 3) abandonment 4) estoppel 5) severance

Question 52

termination of e.: from actions of easement holder: merger: def

Answer 52

when same person acquires both dominant and servient estate, merger of title terminates the easement (and not automatically recreated if servient estate later resold)

Question 53

termination of e.: from actions of easement holder: written release: def

Answer 53

by holder of easement expressly terminating rights in easement must satisfy SOF

Question 54

termination of e.: from actions of easement holder: abandonment: def

Answer 54

1) intent to abandon AND | 2) affirmative act in furtherance of the intent

Question 55

termination of e.: from actions of easement holder: estoppel: def

Answer 55

``` owner of servient estate foreseeably detrimentally relied on easement holder's action/abandonment ```

Question 56

termination of e.: from actions of easement holder: severance: def

Answer 56

if owner of dominant estate tries to sever easement from the dominant estate, it will terminate the easement. (ex. trying to transfer it to another person). (otherwise would normally run w the land)

Question 57

termination of e.: from actions of servient estate: kinds

Answer 57

1) prescription | 2) servient estate sold to bona fide purchaser

Question 58

termination of e.: from actions of servient estate: prescription

Answer 58

owner of servient estate interferes w the use of the easement for the statutory period

Question 59

termination of e.: from actions of servient estate: servient estate is sold

Answer 59

if servient estate is sold to bona fide purchaser who pays value and takes WITHOUT NOTICE OF THE EASEMENT, then terminates (otherwise typically runs w the land)

Question 60

profit: def

Answer 60

like a super-easement: right to go on someone else's land and take someting off of it

Question 61

profit: creation

Answer 61

1) express, or | 2) by prescription

Question 62

profit: termination

Answer 62

just like easements

Question 63

profit: transferrable?

Answer 63

yes

Question 64

license: def

Answer 64

like a mini-easement: a privilege to go on land, but personal right rather than interest in land

Question 65

license: creation

Answer 65

can be oral, no SOF

Question 66

license: termination

Answer 66

freely revocable at any time for any reason terminates automatically if: licensee tries to transfer licensor dies servient estate conveyed EXCEPTION: became irrevocable

Question 67

license: how to become irrevocable

Answer 67

1) license is coupled with an interest | 2) executed license

Question 68

irrevocable licenses: license coupled w an interest: def

Answer 68

(ex. you bought something on someone else's property)

Question 69

irrevocable licenses: executed license: def

Answer 69

(person receiving license spends $ or labor in reliance on license--can only be revoked after person gets value out of expenditure

Question 70

executed license, aka

Answer 70

easement by estoppel

Question 71

license: transferrable?

Answer 71

no, unless intended by licensor attempt to transfer will terminate license

Question 72

fixture: def

Answer 72

chattel attached to land | owned by landowner, so necessary or convenient to the use of the land that it is regarded as part of the land

Question 73

fixture: transfer?

Answer 73

deed to land transfers all fixtures on property, unless buyer + seller agree otherwise

Question 74

fixture: mortgages

Answer 74

mortgage covers the land and all its chattels, no matter when the chattels are annexed

Question 75

zoning ordinances:

Answer 75

conlaw, can challenge under DP / EPC, 1A (if billboards or aesthetics)

Question 76

support rights; kinds

Answer 76

1) lateral support (sides) | 2) subjacent support (underneath)

Question 77

lateral support: rule: land in natural condition

Answer 77

Absolute right to lateral support from adjoining owners IF your land is in its natural condition. Result: SL if adjoining landowners does not provide lateral support

Question 78

lateral support: rule: land has been improved

Answer 78

if your land has been IMPROVED: --if land would have subsided anyway --> adjoining is SL --if the weight of the improvement was what caused the land to subside, then, adjoiing landowner only liable if negligent in depriving property of natural support

Question 79

subjacent support: rule

Answer 79

SL for the excavator if: 1) land in its natural state and 2) for buildings that existed on the date when the subajacent estate was severed from surface negligence liability only for excavator if: 3) subsequently erected buildings were damaged

Question 80

water rights: majority

Answer 80

riparian view | anyone who is within watershed (touches lake or stream) has righ tot make reasonable use of the water (E)

Question 81

water rights: minority

Answer 81

prior appropriation / use | first person to take the water for beneficial purposes gets it (W)

Question 82

diffuse surface water: rules

Answer 82

1) common enemy (E) 2) civil law (W) 3) reasonable use

Question 83

diffuse surface water: common enemy rule: def

Answer 83

E: flood water can be diverted by any method, even onto another's land

Question 84

diffuse surface water: civil law rule: def

Answer 84

W: no interference w any surface water (can't divert onto someone else's land)

Question 85

diffuse surface water: reasoanble use rule: def

Answer 85

surface water can be diverted onto another's land, if using a reasoanble means to do so

Question 86

rule for transferring easements

Answer 86

Rule for transferring easements: when dominant estate is transferred, benefit of easement follows. When servient estate is transferred, burden of an express easement that is recorded follows. Easements run w the land, so long as notice exists.

Question 87

shelter rule

Answer 87

shelter rule: a successor in interest to a person protected by a recording statute is also protected. Recording acts only apply to purchasers for value.