Chapter 9 - Private Use Planning

Question 1

Definition of an easement

Answer 1

right to use, non-possessory

Question 2

5 types of easements

Answer 2

express, implied prior existing use, implied necessity, prescriptive, easement by estoppel

Question 3

express easement

Answer 3

• proper writing under statute of frauds (parties, servient/dominant land, exact location of easement, and purpose of easement)

Question 4

implied prior existing use (4 elements)

Answer 4

• common ownership
• severance of title
• existing apparent and continuous easement
• reasonable necessity

Question 5

implied necessity (3 elements)

Answer 5

• common ownership
• severance of title
• strict necessity
  (only continues as long as necessity continues)

Question 6

Prescriptive easement (3 elements)

Answer 6

like adverse possession

• open and notorious (using in way that gives notice)
• adverse/hostile (no permission from owner)
• continuous (temporal link, used in manner that land should be used)

Question 7

Easement by estoppel (3 elements)

Answer 7

irrevocable license

• landowner gives license
• good faith reliance (significant cost/money expenditure)
• licensor knows or reasonably should expect such reliance will occur/continue
• starts when improvement starts, and lasts as long as improvements useful life
• easement ends if destroyed, can make small/minor repairs

Question 8

Real Covenants

Answer 8

“WIP”

• writing (S.O.F)
• intent (to bind successors)
• privity (horizontal/vertical)

horizontal: original promisor/promisee
- juris 1: always need
- juris 2: only need for burden to run
- juris 3: never need (modern trend)
- landlord/tenant, grantor/grantee, mutual interest (not neighbors)

vertical: exists if entire estate is received
* touch and concern the land

Question 9

Equitable Servitude

Answer 9

“WIN”

• writing (S.O.F.)
• intent (to bind successors)
• notice (actual, record, inquiry)

Question 10

Real covenant language

Answer 10

A real covenant is a promise that includes a writing compliant with the Statute of Frauds, an intent to bind successors, privity (horizontal and vertical), a ‘touching and concerning” of the land, and notice to the party against whom the promise is being enforced. Ronaldo’s promise (i) was contained in his deed from Dominic (satisfying the Statute of Frauds requirement), (ii) was expressly made to bind the successors of Ronaldo and Dominic (“for the benefit of Dominic, his successors and assigns;” “on behalf of Ronaldo, his successors and assigns”), (iii) was made with the parties in the requisite privity relationship (horizontal privity was established because Ronaldo was Dominic’s grantee when the promise was made; vertical privity was established because both Nanda and Lela were successors to the entire estates of Ronaldo and Dominic); (iv) touched and concerned the land since it affected the parties’ use and enjoyment of their lots; and (v) was part of Lela’s record notice when she purchased her lot (Ronaldo’s deed was recorded and therefore provided notice of the covenant to Lela, the party against whom it is being enforced). As a real covenant, the remedy for breach is money damages.