Disputes About the Use of Land

Question 1

Easement

Answer 1

An easement is the right held by one person to make specific, limited use of land owned by another.

Question 2

Easements appurtenant

Answer 2

Easements are presumed to be appurtenant (tied to the land) unless there are clear facts to the contrary.

Question 3

Easements in gross

Answer 3

An easement is in gross if it was granted to the benefit of a particular person (as opposed to the land).

Question 4

Affirmative easements

Answer 4

Most easements are affirmative, giving the holder the right to make affirmative use of another’s property.

Question 5

Negative easements

Answer 5

A negative easement prevents the owner from using land in particular ways in order to benefit the holder of the easement. To be valid, a negative easement must be expressly created by a writing signed by the grantor.

Question 6

Express easements

Answer 6

Arises when it is affirmatively created by the parties in a writing that satisfies the requirements for a deed.

Question 7

Easement by necessity

Answer 7

Created only when property is virtually useless without the benefit of an easement across neighboring property. Additionally, both the dominant and servient estates must have been under common ownership in the past. Also, the necessity must have arisen at the time that the property was severed.

Question 8

Easement by implication

Answer 8

If the owner of two parcels previously used one parcel to benefit the other, then upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment.

Question 9

Easements by prescription

Answer 9

Requires that the use is continuous, actual, open, and hostile for a specific period.

The scope is limited to the nature and extent of the adverse use.

Question 10

Easements by estoppel

Answer 10

Good-faith, reasonable, detrimental reliance on permission by a servient estate holder to make a limited use of her property can create an easement by estoppel if necessary to prevent an injustice.

Question 11

Transfer of easement appurtenant

Answer 11

It is transferred with the land to which it relates.

Question 12

Transfer of easement in gross

Answer 12

Most courts allow transfer if it is for commercial, rather than personal use, or if the parties intended it to be transferable.

Question 13

Apportionment of easement in gross

Answer 13

Whether a transferable easement in gross can be apportioned turns on the terms of the easement and whether the apportionment unreasonably increases the burden on the servient estate.

Question 14

Profit

Answer 14

A nonpossessory right to enter another’s land and remove specific natural resources.

Question 15

License

Answer 15

A nonpossessory right to use another’s land for a specific purpose. Unlike an easement, a license is freely revocable unless coupled with an interest or detrimentally relied upon, in which case the license is irrevocable.

A license is revoked when the licensor dies or the servient estate is transferred.

Question 16

Covenants Running with the Land

(Requirements)

Answer 16

1) Writing
2) Intent
3) Touch and concern
4) Notice (burden only)
5) Privity

a) Horizontal–burden only
b) Vertical–benefit and burden

Question 17

Equitable Servitudes

(Requirements)

Answer 17

1) It must be in writing;
2) There must be intent for the restriction to be enforceable by and against successors;
3) The servitude must touch and concern the land; and
4) If the person against whom the servitude is to be enforced is a purchaser, he must have notice of the servitude.

Question 18

Implied reciprocal servitudes

(planned subdivisions)

Answer 18

1) There must be intent to create a servitude on all plots
2) The servitude must be negative; and
3) The party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice.

Question 19

Defenses to equitable servitudes

Answer 19

1) Changed circumstances
2) Laches
3) Unclean hands
4) Acquiescence
5) Estoppel

Question 20

Fixture

Answer 20

A fixture is tangible personal property that is attached to real property in such a manner that it is treated as part of the real property when determining its ownership.

Question 21

Fee simple owner of real property

(Removal of chattel)

Answer 21

When the chattel is a fixture, the buyer of the real property is generally entitled to the chattel unless the seller reserves the right to remove the fixture in the contract of sale.

Question 22

Other possessors of real property

(Removal of Chattel)

Answer 22

A non-freehold tenant can remove a fixture that the tenant has attached to the leased property if (i) the leased property can be and is restored to its former condition after the removal, and (ii) the removal and restoration is made within a reasonable time.

Question 23

Fructus industriales

Answer 23

Produced through cultivation and are considered personalty.

Question 24

Fructus naturales

Answer 24

They do not require planting because they are produced by nature alone.

Question 25

Variance

(elements)

Answer 25

1) Compliance with the zoning ordinance would result in an unnecessary hardship;
2) The hardship arises from circumstances that are unique to the property;
3) The hardship was not created by the owner;
4) Granting the variance would be in keeping with the overall purpose of the ordinance; and
5) Granting the variance would not result in substantial harm to the general welfare.

Question 26

Use variance

Answer 26

Is sought to obtain the right to use the property in a manner not permitted by the zoning ordinance.

Question 27

Area variance

Answer 27

Focus on restrictions on the manner in which the property is developed rather than the use to which the property is put.

Question 28

Private Nuisance

Answer 28

A private nuisance is a substantial, unreasonable interference with another individual’s use or enjoyment of his property.

Question 29

Public Nuisance

Answer 29

A public nuisance is an unreasonable interference with the health, safety, or property rights of the community. To recover for a public nuisance, a plaintiff must show that he suffered a different kind of harm than that suffered by the rest of the community.

Question 30

Reasonable-use doctrine

(Riparian rights)

Answer 30

Water belongs to those who own the land it borders. Allowing the owner to make any reasonable use of the water. One riparian is liable to another for unreasonable interference with the other’s use. Natural use trumps commerical use and can be unlimited. The water rights cannot be sold or transferred separate and apart from the adjoining land.

Question 31

Prior-appropriation doctrine

Answer 31

Water rights are determined by first in time, first in right. Subsequent owners must not infringe upon the rights of the prior user. The water rights are unconnected to the land and can be sold or transferred separately.

Question 32

Correlative rights

(Groundwater)

Answer 32

Each landowner above a common groundwater source has an equal right to use a reasonable amount of water for beneficial use.

Question 33

Common-enemy doctrine

(Surface water)

Answer 33

The landowner may make changes or improvements to his land to combat the flow of surface water, though he may be liable in negligence.

Question 34

Natural flow theory

(Surface water)

Answer 34

Permits reasonable changes in water flow determined by balancing the harm against the utility.

Question 35

Lateral support rights

Answer 35

When adjoining land is in its natural state, a landowner who excavates on his own land is strictly liable for any damage to the adjoining land caused by the excavation. If the adjoining land has been improved, the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state. If the improvement contributed to the collapse, then the adjoining landowner may recover only if the excavating landowner was negligent.

Question 36

Subjacent support

Answer 36

The owner of the mineral rights is strictly liable for any failure to support the land and any buildings on the land at the time the rights were conveyed. The owner is liable only for negligence for damage to any improvements built after the conveyance of the rights.

Question 37

Air Rights

Answer 37

A landowner has the right to reasonable use and enjoyment of the airspace above his land as long as it does not interfere with another’s reasonable use and enjoyment of land (except for the right to sunlight or to a view).