Disputes About Use of Land Flashcards
(35 cards)
Express easement requirements
Affirmatively created by parties in writing. Subject to SoF.
Can be created by a grant or a reservation (when a grantor conveys land but reserves an easement right in the land for grantor’s benefit).
NEGATIVE easements MUST be express.
Easement by necessity
Dominant/servient estates must have been under common ownership.
Necessity must arise when property severed and estates created.
Property is virtually useless without easement across adjacent property.
Easement in gross
Benefits a person, not the land.
Burden transferred automatically with transfer of servient estate.
Benefit transferable if commercial or parties intended it.
Easement by implication
Dominant/servient estates must have been under common ownership.
A quasi-easement must have existed at severance (owner used the land as if there’s an easement on it).
Use must be continuous and apparent at the time of severance.
Easement must be reasonably necessary to dominant estate’s use/enjoyment.
Easement by estoppel
Good faith, reasonable, detrimental reliance on permission by servient estate holder.
Created to prevent unjust enrichment.
Easement by prescription
Continuous, actual, open, and hostile for statutory period.
Negative easement
Prevents owner from using land in specific ways.
Must be expressly created in writing signed by grantor.
Easement appurtenant
Benefit/burden automatically transfers with transfer of estate.
Termination methods of easements
(1) Release - by writing, signed
(2) Merger - easement merges when owner of dominant/servient estate acquires title to the other estate
(3) Severance - severed by attempt to convey appurtenant easement separate from land it benefits
(4) Abandonment - owner affirmatively acts to show clear intent to abandon
(5) Destruction, condemnation, prescription, estoppel, end of necessity.
Unrecorded express easement not enforceable against BFP of servient estate.
Easement owner duty to maintain
Easement owner has right and duty to maintain the easement.
May seek contribution from co-owners of the easement for the cost of reasonable repairs and maintenance, in proportion to their use.
Profits
Entitles holder to enter servient land and take from it the soil or some substance of the soil such as minerals, timber, and oil.
Cannot be created by necessity.
Licenses
Privilege to enter another’s land. Freely revocable.
Does not need to satisfy SoF.
Real covenant requirements
Must comply with SoF, be in writing.
Requirements for covenant to run
(1) Writing
(2) Intent to run
(3) Touch and concern
(4) Notice (of a burden only)
(5) Privity
“Touch and concern”
Benefit/burden must affect both parties as owners of the land.
Negative covenant: runs with the land if they restrict the owner’s use or enjoyment of the land.
Affirmative covenant: runs with the land if they require the owner to do something related to the use/enjoyment of the land.
Horizontal privity
Required for a burden to run.
Parties are in horizontal privity if the estate and covenant are contained in the same instrument (e.g., the deed).
Vertical privity
To run a burden: need STRICT vertical privity. Successor takes the original party’s entire interest.
To run a benefit: need RELAXED vertical privity. Successor need only take an interest that is carved out of the original party’s estate.
Modern privity trend
No privity required.
Affirmative covenants run to successors of the same duration as the estate of the original party.
Negative covenants are analyzed similar to easements.
Equitable servitude
Operates like a covenant but with equitable remedies, not damages.
To bind a successor:
(1) Writing
(2) Intent to run
(3) Touch and concern
(4) Successor has notice
Breach of covenant remedy
Money damages.
Implied reciprocal servitude creation
(1) Intent to create servitude on all plots (no writing necessary)
(2) Promises must be reciprocal (benefits and burdens each parcel equally)
(3) Must be negative rather than positive
(4) Successor must be on notice of the restriction (at least inquiry notice)
(5) Must be a common plan or scheme
Defenses to enforcement of covenants/equitable servitudes
(1) Changed circumstances
(2) Laches
(3) Unclean hands
(4) Acquiescence
(5) Estoppel
Transfer/termination of real covenants
Rights and obligations are transferred along with real property itself.
Notice generally required to enforce them against a BFP.
Terminated upon release, merger, condemnation, abandonment, estoppel.
Common-interest ownership communities
Individually owned units are burdened by a covenant to pay an association that provides services and enforces other covenants.
