Easements

Question 1

Easements

Answer 1

Non-possessory right to use the land of another person.

Question 2

Affirmative easement

Answer 2

giving an affirmative right for someone else to go on your property

Question 3

Dominant

Answer 3

estate benefited by the easement

Question 4

Servient

Answer 4

Estate burdened by the easement

Question 5

Easement Appurtenant

Answer 5

benefits holder in use of a specific parcel of land

Question 6

Easement in Gross

Answer 6

Benefits the easement holder in a personal sense, regardless of whether the holder owns any land. No dominant land exists, only servient land exists.

Question 7

Negative easement

Answer 7

owner of easement/dominant estate having right to tell owner of servient estate not to do something on the servient land.

Question 8

Granted conveyance

Answer 8

Of easement, owner of the dominant estate transfers rights in the servient land to a new owner including rights to use the easement so that dominant owner themselves can no longer use it.

Question 9

Reserved conveyance

Answer 9

of easement, the owner of dominant estate transfers right in the servient land but retains rights to the easement so they themselves can continue to use it.

Question 10

Express Easement

Answer 10

Usually created by grant or reservation.
- Must comply with SOF
- Must be in writing
- be signed by the party to be bound
- created with all relevant formalities.

Question 11

Easement Implied by Prior Use Elements

Answer 11

1) Severance of title to the land held in common ownership, 2) existing, apparent, and continuous use when severance occurs; and; 3) reasonable necessity for the use at time of severance.

Question 12

(1) severance of title to the land held in common ownership

Answer 12

common ownership is when one person owned either two parcels of land or one large parcel and a part was sold to another person.

Question 13

(2) existing, apparent, and continuous use when severance occurs

Answer 13

(a) timing is key, must be at the time of severance
(b) owner must have had existing use of one part of the property to benefit another part of the property in a way that was apparent (visible) and continuous

Question 14

(3) reasonable necessity for the use at time of severance

Answer 14

(a) timing is key, must be at time of severance, (b) reasonable necessity means “reasonably convenient” to the dominant land

Question 15

Easement by necessity elements

Answer 15

(1) Severance of title to the land held in common ownership, (2) strict necessity for an easement at the time of severance

Question 16

Prescriptive easement

Answer 16

(1) Actual use
(2) Open and Notorious
(3) Adverse Use
(4) Continuous Use
(5) Statutory Period

Question 17

Actual use

Answer 17

Claimant Must show they used the easement as a true owner of easement would.

Question 18

Open and Notorious Use

Answer 18

Use of easement must be visible and obvious such that the owner of servient land would be aware they are using the land.

Question 19

Adverse Use

Answer 19

Fact pattern that triggers permission does not satisfy his requirement.

Question 20

Continuous

Answer 20

Does not have to be 24/7

Question 21

Statutory Period

Answer 21

Period for which all of the elements must be satisfied

Question 22

Easement by Estoppel

Answer 22

Claimant must show:
(a) A license, typically for access purpose
(b) licensee’s expenditure of substantial money or labor in good faith reliance, and
(c) licensor’s knowledge or reasonable expectation that reliance will occur

Question 23

Scope of easements

Answer 23

In general, scope of an easement permits an easement holder to do anything that is reasonably necessary for the full enjoyment of the easement, unless evidence provides otherwise

Question 24

Transfer of easements checklist

Answer 24

(1) Express or implied?
(2) Appurtenant v. in gross
(3) Does this easement transfer to subsequent purchasers?

Question 25

Termination of easements

Answer 25

(1) express, (2) merger, (3) prescription, (4) Estoppel, (5) abandonment

Question 26

Express termination

Answer 26

The parties can include an express limitation on the easement, such as expiration date, term of years, or a condition. Release: The easement holder may release the easement to the servient owner by executing and delivering a writing that complies with the SOF.

Question 27

Merger

Answer 27

If one person obtains title to both the easement and the servient land, the easement terminates under the doctrine of merger. An easement cannot be terminated by merger if there are any other future interests in the dominant or servient estate. Instead, use of the easement is suspended until the future-interest holder becomes entitled to possession.

Question 28

Prescription

Answer 28

The servient landowner may terminate an easement by prescription based on the same elements of easement by prescription, except servient owner must substantially interfere with the holder’s use of the easement.

Question 29

Estoppel

Answer 29

An easement ends if the servient owner substantially changes his position in reasonable reliance on the holder’s statement that the easement will not be used in the future. 2 elements: (1) the easement holder says they’re not using the easement anymore, (2) servient owner substantially relies on statement

Question 30

Abandonment

Answer 30

Abandonment depends on the easement holder’s intent. Abandonment of an easement is established if the holder (a) stops using the easement for a long period and (b) takes other actions that clearly show intent to relinquish the easement.

Question 31

Covenant

Answer 31

A covenant is an agreement among owners that a parcel or multiple parcels of land will be used in a certain way.

Question 32

Difference between real covenant and equitable servitude

Answer 32

Real Covenants - may seek damages as remedy Equitable Servitudes - may seek injunction as remedy

Question 33

Negative covenants

Answer 33

Limitations on land satisfy touch and concern requirements

Question 34

Real covenant

Answer 34

A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors.

Question 35

Real covenants requirements

Answer 35

does the burden run with the land? (A) SOF (B) Intent (C) T&C (D) Notice - only for burden, not benefit (E) Horizontal Privity (F) Vertical Privity

Question 36

Equitable Servitude

Answer 36

A covenant (promise) that, regardless of whether it runs with the land at law, equity will enforce against the successors of the burdened land unless the successors is a bonafide purchaser (a subsequent purchaser for value without notice of the covenant

Question 37

Equitable Servitude Reqs - For Burden and Benefit to Run with the Land

Answer 37

(1) SOF (2) Intent (3) T&C (4) Notice

Question 38

SOF

Answer 38

covenant must be in a document that satisfies SOF

Question 39

Intent

Answer 39

OG parties must intend to bind their successors to the land (express in written or inferred from circumstances)

Question 40

T&C

Answer 40

Covenant must touch and concern the land. It must relate to the enjoyment, occupation, or use of the land. Any limitation on land will generally satisfy this element.

Question 41

Notice

Answer 41

Promisor’s successor must have notice of the covenant by: Actual notice: stated in the deed or seller/landlord told them Record notice: recorded in county records Inquiry notice: visible/apparent, so purchaser should have asked

Question 42

Horizontal Privity (“HP”) (only for burden not benefit)

Answer 42

Requires the OG parties to the covenant to have shared some interest in the land, independent of the covenant

Question 43

VP: BURDEN AND BENEFIT

Answer 43

Requires, for the burden to run, the successor to the land receive the entire estate held by the original promisor. OG promisor had fee simple absolute and granted to successor a Term of years for 10 years (THIS IS NOT ENTIRE ESTATE) Requires, for the benefit to run, the successor to the land receive either the entire estate or a smaller estate held by the original promisee.

Question 44

Common Plan rule for subdivisions

Answer 44

Covenant must be in a document that satisfies the SOF or implied from a common plan where a developer imposed uniform restrictions on a subdivision in which all lots are burdened by restrictions even if they do not appear in the chain of title to every lot (i.e., limit to residential use based on sales, literature, statements by developer, and percentage of deeds with restrictions.

Question 45

Case for Notice

Answer 45

Gambrell v. Nivens - good example of actual notice because real estate agent told them.

Question 46

Conservation easement

Answer 46

Type of negative easement - an express easement that restricts the development and use of the servient land in order to preserve open space, farmland, historical sites, or wild and undeveloped land.

Question 47

Marketable title

Answer 47

is title to real property that is reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. It does not need to be "perfect" title, but the title must be free from questions that might present an unreasonable risk of litigation.

Question 48

Marketable title cont.

Answer 48

is an implied covenant and implied condition in a purchase contract. If title is unmarketable, then buyer can rescind the purchase K. Unmarketable title only allows buyer to rescind, not seller.

Question 49

What renders title unmarketable?

Answer 49

(1) problems with title to real property, (2) risk of litigation, (3) must be a substantial problem

Question 50

Title not unmarketable

Answer 50

(1) if parties agree to terms, (2) physical defects

Question 51

(1) problems with title to real property

Answer 51

(1) less property interest than identified in purchase contract (i.e. selling a FSA when you only have an LE), (2) subject to an encumbrance (even if recorded, unless there is K language)

Question 52

(2) risk of litigation

Answer 52

(1) uncertainty regarding title and (2) violation of law (i.e. violation of a zoning ordinance), (3) violation of private covenant (even if wouldn't otherwise make title unmarketable)

Question 53

Examples of not unmarketable if parties agree to terms

Answer 53

(1) purchase K says "no promises re: marketable title," (2) purchase K explicitly lists the encumbrance or potential litigation, (3) zoning restrictions - unless violated, (4) some jdx: visible encumbrance, and (5) physical defects.

Question 54

Timing issues: Marketable title

Answer 54

In general, if buyer discovers a problem with title during the "executory period" (after the purchase K is signed but before closing), then seller has until closing to fix the problem with title.

Question 55

If the purchase K does not have a "time is of the essence clause

Answer 55

then the seller still has a reasonable time to cure after closing date (often 1-2 months is considered reasonable)

Question 56

If the purchase K has a time is of the essence clause

Answer 56

then seller must provide marketable title at closing - no reasonable time to cure

Question 57

If it's obvious that the problem can't be cured prior to closing

Answer 57

then the buyer can rescind based on unmarketable title prior to the closing (i.e. one story house can't become two story in one week).

Question 58

Disclosure Requirement

Answer 58

In general, a seller has a duty to disclose if (1) the defect is known to the seller or reasonably should have known, (2) not known or not readily discoverable by a buyer exercising due care (latent defects), and (3) the defect materially impacts the value of the K. Every jdx prohibits intentional misrepresentation.

Question 59

As-Is Clauses

Answer 59

Sellers sometimes attempt to avoid liability for property defects by inserting exculpatory "as is" clauses (waivers) in purchase Ks An "as-is" clause in purchase K If intentional misrepresentation: the as is clause is not enforceable Residential: Jdx split on whether enforceable or not enforceable (and so require disclosure notwithstanding as-is clause" Commercial: usually enforceable If exculpatory "as is" clause identifies and disclaims liability for specific types of defects (i.e. seller is not liable for leaks in the roof), likely to be upheld.

Question 60

Executory period (after purchase K is signed) - Equitable Conversion

Answer 60

Under the equitable conversion doctrine, the purchase K “converts” the legal right to property from Seller to Buyer. The Buyer is the equitable owner of the land until closing unless the K provides otherwise.

Question 61

Buyer's Breach

Answer 61

Justifies seller's recission and other remedies

Question 62

Seller's Breach

Answer 62

(justifies Buyer's rescission and other remedies)

Question 63

Buyer's Remedy (performance)

Answer 63

Specific performance when money damages are inadequate.

Question 64

Seller's Remedy (performance)

Answer 64

Specific performance when money damages are inadequate.

Question 65

Situations where money damages are adequate - restitution damages

Answer 65

back to original position (i.e. If S breaches, S must return B's deposit)

Question 66

Situation where money damages are adequate - reliance (incidental) damages

Answer 66

Expenses from reliance on the K (i.e. S must reimburse B's inspection costs)

Question 67

Situation where money damages are adequate - consequential damages

Answer 67

Foreseeable damages to non-breaching property if reasonably certain (i.e. B's lost profits from the inability to run business on the subject property) Fact pattern will tell us they either have a business or that they somehow lost profits as a result of the sales K.

Question 68

Situation where money damages are adequate - liquidated damages

Answer 68

K provision specifying damages for breach in advance enforceable only if: difficult to determine damages in advance, and when signed purchase K, reasonable estimate (courts usually ignore the first element and focus on second).

Question 69

Situation where money damages are adequate - expectation damages

Answer 69

difference between K price and fair market value on date of breach. Exception in some jdx: if good faith unintentional breach of warranty of marketable title, expectation damages not available.

Question 70

General Warranty Deed

Answer 70

Grantor warrants title against all the defects, whether they arose before or after they obtained title.

Question 71

Special Warranty Deed

Answer 71

Grantor warrants title against all defects that arose after they obtained title.

Question 72

Quitclaim Deed

Answer 72

Grantor makes no warranties about title, so the grant he receives, only what the grantor has, if anything.

Question 73

Delivery of Deed:

Answer 73

Grantor’s manifest intent to transfer an immediate property interest to the grantee. Grantee's acceptance is usually presumed.

Question 74

Present Covenant - Seisin

Answer 74

This warrants that grantor owns property being sold.

Question 75

Present Covenant - Right to Convey

Answer 75

Grantor G is authorized to sell the land If you see breach of covenant of seisin, also breach of covenant of right to convey.

Question 76

Covenant against encumbrances

Answer 76

Encumbrances include easements, covenants, equitable servitudes, mortgages on the property, or other liens on the property like unpaid tax on it.

Question 77

Future covenant - covenant of warranty

Answer 77

Promise to defend title in litigation so if there's the possibility of litigation, is the covenant of warranty breached? NO, there needs to be an actual complaint filed in order for this covenant to be breached.

Question 78

Future covenant - covenant of quiet enjoyment

Answer 78

General promise that title is clear This overlaps a lot with covenant of warranty except here, let's say there's an interference with the property (no litigation here) but there's interference.

Question 79

Future Covenant - covenant of further assurances (RARE)

Answer 79

Promise to correct title problems like a mistake in a deed

Question 80

Race Statute

Answer 80

Under a pure race statute, whoever records first wins. Actual notice is irrelevant.

Question 81

Notice Statute

Answer 81

Under a notice statute, a subsequent BFP (i.e., a purchaser who gives valuable consideration and has no notice of the prior instrument) prevails over a prior grantee who failed to record.

Question 82

Race-Notice Statute

Answer 82

Under a race-notice statute, a subsequent BFP is protected only if she records before the prior grantee.