Adverse possession and Servitudes

Question 1

What kind of situations does adverse possession usually arise in?

Answer 1

in instances of mutual mistake regarding a boundary

Question 2

What are the elements for adverse possession

Answer 2

Actual Entry
Exclusive
Open and notorious
Adverse as a claim of right
Continuous
For the statutory period

Question 3

What is actual entry?

Answer 3

physically being in the land, such as building, planting, mistaken building

Question 4

What is exclusive?

Answer 4

the person is excluding the property like a reasonable true owner would. It is not being shared beyond the ways a reasonable true owner would

Question 5

What is open and notorious?

Answer 5

the possessor is sending a message that this property is his and putting the true owner on notice- - using the property like a reasonable true owner would use property of that character. Courts do not usually require that the true owner actually knows about the trespass to his land, only that he should have known that someone was using his land like a true owner would

Question 6

What is adverse claim of right?

Answer 6

the true owner must not have given the adverse possessor permission to enter the land; otherwise it is not adverse

Question 7

If the true owner is not clear on whether they gave the possessor permission or not, what happens?

Answer 7

The burden shifts to the true owner to prove that they DID give the possessor permission

Question 8

What are the three different types of mindsets that different jurisdictions require for adverse possesors entering the land?

Answer 8

Objective state of mind jurisdictions don’t care what the possessor was thinking when he entered the land
good faith jurisdictions require that the possessor enter the land with the false belief that the land belonged to them
bad faith/intentional jurisdiction, where the possessors can only meet this element by entering this land with the intention of taking someone else’s land

Question 9

What is the continuous element?

Answer 9

using the property like a reasonable true owner would use property of that character.

Question 10

What is tacking?

Answer 10

The practice of adding together successive time periods of adverse possessors in order to reach the statutory minimum

Question 11

What are the two requirements for tacking?

Answer 11

A voluntary transfer of property between possessors
Unbroken chain of possessors

Question 12

What does “for the statutory period” mean?

Answer 12

all the elements need to be met for whatever length of time is set out in the statute (varies by state)

Question 13

What happens if a true owner files a trespass claim during the statutory period?

Answer 13

The continuous element is broken

Question 14

What is possession by prescription?

Answer 14

If someone is on the land for a specific use rather than treating it like a true owner would, they may earn an easement to permanently use the land for that specific purpose

Question 15

What are the elements for prescription?

Answer 15

Open and Notorious
Adverse claim of right
Continuous
Statutory period
Actual entry

Question 16

What is a servitude?

Answer 16

A non-possessory interest in land that allows the holder to make use of the land or prevent something from being done on the property.

Question 17

What is an easement?

Answer 17

It is a legal right to do something on somebody else’s land

Question 18

How are most easements created?

Answer 18

Formally by deed

Question 19

Easements run with the land if they….(3 things)

Answer 19

1) It is in writing
2) The grantor intended for the easement to run to her successors
3) The grantor’s successors are put on notice of the burden

Question 20

What is the statute of fraud?

Answer 20

the statute that prevents fraud by requiring real estate transactions to be in writing. Prevents people from saying that there were oral agreements to exchange land when there was none

Question 21

What are five informal ways in which easements are created, that do not require writing?

Answer 21

Easement by prescription
Custom
Easement by estoppel
Easement by prior apparent use
Easement by necessity

Question 22

What is easement by prescription?

Answer 22

Easement created by the open and adverse use of another’s land for a specific purpose

Question 23

What is easement by estoppel?

Answer 23

An irrevocable right to a specific use of the property of another that is established by permission from the owner to use and improve the property that induces the licensee to use and make such improvements at his own expense

Question 24

What is the norm with licenses?

Answer 24

They can normally be revoked at any time

Question 25

What are the requirements for an easement by estoppel?

Answer 25

It should be clear that the other person expects the permission to continue, they have invested a lot into the property, and it would be unfair to take back the permission later

Question 26

What is an easement by prior use and what two situations is it commonly found in?

Answer 26

easement created by implication due to a previously established, noticeable use of the land. Either 2 parcels previously owned by the grantor are subdivided or 1 parcel previously used for the benefit of the other in an apparent and continuous manner

Question 27

What is required for an easement by prior use?

Answer 27

While not technically landlocked, use is reasonably necessary or convenient for enjoyment of dominant use

Question 28

What is easement by necessity?

Answer 28

allows the easement holder a right of way over the conveyer’s adjacent land because it is the only means of getting to important landmarks such as a highway

Question 29

What is the majority opinion on easement by necessity?

Answer 29

A can have access to B’s property if there is a strict necessity and the parties intended for there to be a pathway

Question 30

What is the minority opinion on easement by necessity?

Answer 30

A can have access to B’s property if there is a strict necessity. The parties need not have the intention for there to be a pathway

Question 31

Who has the higher burden in necessity cases?

Answer 31

The grantor. They have the higher burden of proof to show that revoking permission is necessary

Question 32

What is an easement appurtenant?

Answer 32

an easement that runs with the land for the benefit of the dominant tenement, the burden rests on the servient

Question 33

Easements are assumed to be _______

Answer 33

appurtenant

Question 34

What are easements in gross?

Answer 34

An easement that belongs to the easement holder independently of a parcel of land and thus does not run with and is not attached to the land. Needs special documentation for this

Question 35

How can easements be terminated?

Answer 35

1) Agreement in writing 2) By their own terms- ex if the deed specifically states a time period 3) By merger- when the holder of the servient estate becomes the owner of the dominant estate 4) By abandonment- if it can be shown that the owner of the easement acted in a way that indicated an attempt to abandon the easement 5) By adverse possession or prescription by the owner of the servient estate or third party 6) Frustration of purpose- if the easement becomes impossible to accomplish or it no longer serves its intended purpose

Question 36

What is a real covenant?

Answer 36

An agreement between two parties not to do something on someone's land enforced by money damages

Question 37

What are equitable servitudes?

Answer 37

covenants could be enforced by injunction despite the lack of privity if they met the other elements + notice of the restirction

Question 38

What are the requirements for a real covenant?

Answer 38

1) The covenant must be in writing (minus some very rare exceptions) 2) the grantor has to intend that the benefits and burdens of the promise run with the land. 3) Horizontal privity- the promise was made during a transfer of land or leasing land and makes clear that the promise is built into the purchase price of that land, aka purchase price reflects the promise Vertical privity- A formal transfer of land that occurs between an original party and a successor 4) There is some effect or use of the land itself 5) Notice? maybe

Question 39

What are the requirements for equitable servitudes?

Answer 39

1) The covenant must be in writing (minus some very rare exceptions) 2) the grantor has to intend that the benefits and burdens of the promise run with the land. 3) Notice 4) There is some effect or use of the land itself

Question 40

What is the presumption if a covenant is silent on whether it runs with the land or not?

Answer 40

The presumption is that covenants run with the land

Question 41

What are the different types of notice?

Answer 41

a. Inquiry notice- a buyer should have inquired something about the land given the circumstances b. Actual notice c. Constructive/record notice- something in the chain of title that indicates that there was something that is making your title less whole

Question 42

What is The Doctrine of Instantaneous privity?

Answer 42

a legal concept where privity (a direct relationship or connection between parties) is recognized at the moment a covenant or agreement is made, even if the parties involved don't have an ongoing, long-term relationship

Question 43

It is illegal to enforce what kind of covenants?

Answer 43

racially segregated covenants.

Question 44

What is the exception to the writing requirement in covenants?

Answer 44

Implied Reciprocal Negative Servitudes- when an owner sells a number of parcels with evidence of intent to create a common plan or scheme of development

Question 45

What are the requirements for implied reciprocal negative servitudes?

Answer 45

(1) covenants made to the seller benefit all parcels within the plan and (2) all parcels within the plan are bound by the covenants