Ch 6: Disputes About the Use of Land

Question 1

What is an easement? (T)

Answer 1

A nonpossessory interest in land that:

Gives the easement holder the right to use another’s land for a specific purpose (i.e., affirmative easement) or

Prohibits the owner from doing something on land that the owner would otherwise be allowed to do (i.e., negative easement)

Question 2

What is a license? (T)

Answer 2

A revocable privilege to enter and use another’s property for a specific purpose

A license is freely revocable unless it is coupled with an interest or detrimentally relied upon

Unlike an easement, a license does not need to be in writing

If the parties attempt to create an express easement that does not satisfy the Statute of Frauds, then a license is created instead

Question 3

What is a profit? (T)

Answer 3

A nonpossessory interest in land that gives the profit holder the right to enter another’s land to remove products of soil (e.g., timber, minerals, oil).

Profits are created and analyzed similarly to easements, except that they cannot be created by necessity

Question 4

What is an express easement? (T)

Answer 4

An express easement is affirmatively created by the parties in a writing that satisfies the requirements for a deed.

Question 5

What is an implied easement? (T)

Answer 5

An implied easement is created by necessity, implication, prescription, or estoppel.

Question 6

What is an easement by implication? (T)

Answer 6

Arises when the owner of two parcels of land uses one parcel to benefit the other and then transfers ownership of one of the parcels. A court may find that the parties intended for the use to continue as an easement if the prior use (1) was continuous, (2) was apparent or known, and (3) is reasonably necessary to the dominant land’s use and enjoyment.

Question 7

What is an easement by necessity? (T)

Answer 7

Arises when property is virtually useless (e.g., landlocked) without the benefit of an easement across neighboring property. Both the dominant and servient estates must have been under common ownership, and severing the estates must have created the necessity.

Question 8

What is an easement by prescription? (T)

Answer 8

Created using similar requirements to adverse possession but without the exclusivity requirement.

Question 9

What is an easement by estoppel? (T)

Answer 9

Created by good-faith, reasonable, detrimental reliance on permission given by the servient-estate holder to make limited use of the property. This easement is created if it is necessary to prevent injustice.

Question 10

What happens if an express easement was granted but not recorded? (T)

Answer 10

If an express easement was granted but not recorded, then the sale of the servient estate to a bona fide purchaser may prevent the easement from being enforceable.

Question 11

What is the mnemonic for easement creation? (T)

Answer 11

WIPE

Writing
Implication
Prescription
Estoppel

Question 12

What is the mnemonic for easement termination? (T)

Answer 12

DAMPER

Destruction of servient estate
Abandonment
Merger
Prescription
Estoppel
Release (satisfying Statute of Frauds)

Question 13

An easement will terminate according to its _____ _____ or when there is an attempt to convey an easement appurtenant separately from the land it benefits. (T)

Answer 13

An easement will terminate according to its express terms or when there is an attempt to convey an easement appurtenant separately from the land it benefits.

Question 14

What does it mean that an easement can be terminated by destruction or condemnation? (T)

Answer 14

Destruction or condemnation of the property may terminate an easement.

Question 15

What does it mean that an easement can be terminated by abandonment? (T)

Answer 15

An easement can be terminated if the easement owner acts in an affirmative way that shows clear intent to relinquish the easement right. Mere statements of intent or nonuse of the easement are not sufficient to amount to abandonment (but may be evidence of termination by estoppel).

Question 16

What does it mean that an easement can be terminated by merger? (T)

Answer 16

An easement is terminated if the owner of the dominant or servient estate acquires fee title to the other estate.

Question 17

What does it mean that an easement can be terminated by prescription/necessity? (T)

Answer 17

A prescriptive easement may terminate if the owner of the servient estate interferes with the easement in a continuous, actual, open, and hostile way for a specific period. And an easement by necessity terminates when the necessity ceases to exist.

Question 18

What does it mean that an easement can be terminated by Estoppel? (T)

Answer 18

If the servient-estate owner changes position to his detriment in reliance on statements or conduct of the easement holder, then the easement holder may be estopped from asserting the easement.

Question 19

What does it mean that an easement can be terminated by release? (T)

Answer 19

An easement can be terminated by a writing that expressly releases the easement and satisfies the requirements for the creation of a deed.

Question 20

What does it mean that an easement owner has the right and duty to maintain the easement? (T)

Answer 20

The easement owner may seek contribution from co-owners of the easement (including servient-estate owners who also use the easement) for the cost of reasonable repairs and maintenance, in proportion to their use.

Question 21

How are real covenants enforced? (T)

Answer 21

Real covenants are enforced by a suit for damages.

Question 22

How are equitable servitudes enforced? (T)

Answer 22

Equitable servitudes are enforced by injunction.

Question 23

A covenant linked to real property can be enforced by and against subsequent landowners as a matter of property law if the covenant runs with the land as long as what five elements are met? (T)

Answer 23

Writing, intent, touch and concern, notice (burden only), and privity.

Question 24

What is the writing element for real covenants? (T)

Answer 24

The covenant must comply with the Statute of Frauds.

Question 25

What is the intent element for real covenants? (T)

Answer 25

The parties must intend for the rights and duties to run with the land.

Question 26

What is the touch and concern element for real covenants? (T)

Answer 26

The benefit or burden must affect the promisee or promisor as owners of land.

Question 27

What is a negative covenant? (T)

Answer 27

Negative covenants run with the land if they restrict the owner’s use or enjoyment of the land.

Question 28

What is an affirmative covenant? (T)

Answer 28

Affirmative covenants run with the land if they require the owner to take affirmative action related to the use and enjoyment of the land.

Question 29

What is the notice element for real covenants? (T)

Answer 29

A purchaser without notice of a burdening covenant is not bound by it if the purchaser is protected by the recording act. Only affects burdens that run with the land.

Question 30

What is the privity element for real covenants? (T)

Answer 30

This refers to the relationships between the parties.

Question 31

Regarding real covenants, what is horizonal privity? (T)

Answer 31

For the burden to run, the original parties must have privity of estate at the time the covenant is agreed upon.

Question 32

Regarding real covenants, what is vertical privity? (T)

Answer 32

This refers to the relationship between an original party and the successor to the property interest. For the burden to run, the successor must hold an estate of the same duration as the original party. For the benefit to run, the successor must hold some portion of the original party’s property interest.

Question 33

What is an equitable servitude? (T)

Answer 33

Equitable servitudes are agreements about land use that are enforced at equity by injunction.

Question 34

What are the requirements for an equitable servitude? (T)

Answer 34

Writing, intent, touch and concern, and notice (burden only).

Question 35

What is the writing requirement for an equitable servitude? (T)

Answer 35

The servitude must comply with the Statute of Frauds (except for implied reciprocal servitudes).

Question 36

What is the intent requirement for an equitable servitude? (T)

Answer 36

The parties must intend for the restriction to be enforceable by and against successors.

Question 37

What is the touch and concern requirement for an equitable servitude? (T)

Answer 37

The benefit or burden must affect the promisee or promisor as owners of land.

Question 38

What is the notice requirement for an equitable servitude? (T)

Answer 38

A purchaser without notice of the equitable servitude is not bound by it. Only applies to burdens.

Question 39

When a party has established a real covenant entitling him to money damages, the promise may also be enforced as an equitable servitude. But because an equitable servitude does not require _____, the reverse is not necessarily true.

Answer 39

When a party has established a real covenant entitling him to money damages, the promise may also be enforced as an equitable servitude. But because an equitable servitude does not require privity, the reverse is not necessarily true.

Question 40

When do implied reciprocal servitudes typically arise? (T)

Answer 40

Implied reciprocal servitudes typically arise in planned subdivisions.

Question 41

What are the requirements for an implied reciprocal servitude to be enforceable? (T)

Answer 41

There must be intent to create a servitude on all plots (i.e. common scheme), the servitude must be negative (i.e., a promise to refrain from doing something), and the party against whom enforcement is sought must have notice (note that the common scheme or plan gives implied notice).

Question 42

What is considered common evidence of a common scheme of development? (T)

Answer 42

Common evidence of a common scheme of development includes: (1) a recorded map of the community that shows the scheme, (2) marketing or advertisement of the community, or (3) an oral or written mention (e.g., in a deed) that the lots are burdened by a common restriction.

Question 43

What are the defenses to enforcement of covenants and equitable servitudes? (T)

Answer 43

Changed circumstances, laches, unclean hands, acquiescence (implied permission), and estoppel.

Question 44

How can you spot changed circumstance? (T)

Answer 44

To spot changed circumstances, look for situations where the restriction no longer makes sense due to drastic changes in the surrounding area. Consider whether the property subject to the restriction still retains some benefit from the restriction.

Question 45

How do covenants and equitable servitudes generally terminate? (T)

Answer 45

Covenants and equitable servitudes generally terminate in the same ways that easements do.

Question 46

What happens in a common-interest ownership community? (T)

Answer 46

In a common-interest ownership community, individually owned units are burdened by a covenant to pay dues to an association that provides services and enforces other covenants.

Question 47

Who governs a common-interest ownership community? (T)

Answer 47

They are governed by an association, which is overseen by a board of directors.

Question 48

What powers do the associations of common-interest ownership communities tend to have? (T)

Answer 48

Have powers (as reasonably necessary) to manage the common property, administer the covenants, and carry out other functions set out in the governing documents or statute.

Question 49

What are fixtures? (T)

Answer 49

A fixture is tangible personal property (i.e., chattel) that is attached to real property in such a manner that it is treated as part of the real property.

Question 50

Regarding fixtures, what happens to structures built on real property (e.g., walls) and materials incorporated into a structure (e.g., bricks to make a wall)? (T)

Answer 50

Structures built on real property (e.g., walls) and materials incorporated into a structure (e.g., bricks to make a wall) become part of the real property.

Question 51

Regarding fixtures, what is the buyer of the real property generally entitled to? (T)

Answer 51

The buyer of real property is generally entitled to the fixture unless the seller reserves the right to remove the fixture in the contract of sale.

Question 52

Regarding fixtures, what are trespassers (e.g. holdover tenants) allowed to do? (T)

Answer 52

Trespassers (e.g., holder tenants) can remove an improvement, or at least recover the value added to the property, so long as they acted in good faith.

Question 53

A local zoning ordinance must be _________ ________ to a legitimate governmental purpose. (T)

Answer 53

A local zoning ordinance must be rationally related to a legitimate governmental purpose.

Question 54

Zoning laws may be based on what? (T)

Answer 54

Zoning laws may be based on use (e.g., residential, commercial, industrial), development (e.g., setbacks, density), or special concerns (e.g., environmental protection, historic preservation).

Question 55

What are some challenges to zoning laws? (T)

Answer 55

Fifth Amendment Takings Clause, Fourteenth Amendment Substantive Due Process Clause, Fourteenth Amendment Equal Protection Clause, and the Federal Fair Housing Act.

Question 56

Regarding zoning, what is the challenge under the Fifth Amendment Takings Clause? (T)

Answer 56

Zoning regulations do not rise to the level of a taking unless they eliminate all economically viable use.

Question 57

Regarding zoning, what is the challenge under the Fourteenth Amendment Substantive Due Process Clause? (T)

Answer 57

Unless they violate a fundamental right, zoning ordinances need only satisfy the rational-basis test.

Question 58

Regarding zoning, what is the challenge under the Fourteenth Amendment Equal Protection Clause? (T)

Answer 58

A zoning ordinance that discriminates against a suspect class (e.g., race, national origin) is subject to strict scrutiny. But the challenger must show that the ordinance has a discriminatory purpose or intent—a discriminatory effect is not enough.

Question 59

Regarding zoning, what is the challenge under the Federal Fair Housing Act? (T)

Answer 59

This Act prohibits discrimination on the basis of race, color, religion, national origin, sex, disability, or familial status.

Question 60

How do cities generally treat existing nonconforming property? (T)

Answer 60

A zoning ordinance must generally provide for properties that had an existing use that does not conform to the new zoning law, and most states permit the imposition of a reasonable time limit on the nonconforming use (grandfathered in). The nonconforming use cannot be expanded after being grandfathered in, but frequency of the nonconforming use may be increased if the nature and character of the use does not constitute a substantial change.

Question 61

How do cities generally treat post-ordinance nonconforming property? (T)

Answer 61

An owner may request a special exception permit or a zoning variance by establishing that: The variance does not deviate from the comprehensive zoning plan and Compliance with the zoning ordinance would result in unnecessary hardship.

Question 62

Regarding water rights, what is the Riparian Doctrine? (T)

Answer 62

Water belongs to owners of the land bordering the watercourse The owner may make any reasonable use of the water that does not unreasonably interfere with downstream use (reasonable-use doctrine) Domestic (natural) use trumps commercial (artificial) use Water rights cannot be sold or transferred separate from the adjoining land

Question 63

Regarding water rights, what is the Prior-Appropriation Doctrine? (T)

Answer 63

Water rights are determined by priority of beneficial use (first in time, first in right) Any productive or beneficial use of the water, including use for agriculture, is sufficient to create appropriation rights Water rights are unconnected to adjoining land and can be sold or transferred separately

Question 64

What are air rights? (T)

Answer 64

A landowner has a limited right to reasonable use and enjoyment of the airspace above her land as long as it does not interfere with another’s reasonable use and enjoyment of land.

Question 65

What does it mean that a landowner has the right to lateral support from adjoining land? (T)

Answer 65

When adjoining land is undeveloped, a landowner who excavates on her land is strictly liable for damage to the adjoining land. When the adjoining land has been improved, the excavating landowner is strictly liable for damage only if the adjoining land would have collapsed in its natural state. If the improvement contributed to the collapse, then the landowner is only liable if she was negligent.

Question 66

What does it mean that a landowner has the right to subjacent support when the landowner has granted the right to mine on the land to a third party? (T)

Answer 66

The owner of mineral rights is strictly liable for failure to support the land and any buildings on the land that existed at the time the rights were conveyed. The owner of mineral rights is liable for damage to improvements built after the mineral rights were conveyed only if she was negligent.