Kaplan Pgs 549-567 Rights In Land

Question 1

What is a covenant that runs with the land?

Answer 1

A promise that attaches to the land where the covenantor promises to do or refrain from doing something on his land. Most running covenants are negative in nature

Question 2

What is an example of a covenant that runs with the land?

Answer 2

If the landowner promises not to build anything other than a single-family residence on her premises

Question 3

What is the major difference between easements and covenants?

Answer 3

Easements are usually positive and covenants are usually negative

Question 4

When might a court find an equitable servitude instead of a covenant?

Answer 4

– if the plaintiff can establish all the elements for a covenant that runs, but he’s seeking equitable relief
– if the plaintiff can’t establish all the elements for a covenant that runs, but he can show the relaxed requirements for an equitable servitude

Question 5

What is an implied reciprocal servitude?

Answer 5

When someone owns two or more lots that are situated close to each other, and sells one lot with restrictions that benefit the land that is still kept, then the servitude becomes mutual and the owner of the lot that is kept can’t do anything that’s forbidden to the owner of the lot that was sold, so that creates an implied reciprocal servitude

Question 6

What are the elements that are required in order for a covenant to run with the land? ***

Answer 6

– writing
– intent
– privity
– touch and concern
– notice

Question 7

Why must a covenant that runs with the land be in writing?

Answer 7

Because a covenant that runs is a promise that attaches to the land, so the SOF requires a writing

Question 8

What is required for the element of intent in order for a covenant to run?

Answer 8

The writing must include language that shows that the parties intend the covenant to run

Question 9

What is typical language used for a covenant to run with the land?

Answer 9

The covenantor promises “on behalf of myself and my heirs, successors and assigns, to do or refrain from doing __________ on my land for the benefit of the covenantee and his heirs, successors, and assigns.“

Question 10

What are the two different types of privity involved in a covenant running with the land?

Answer 10

Horizontal privity and vertical privity

Question 11

What is horizontal privity as an element of a covenant running with the land?

Answer 11

The relationship that exists between the original covenantor and covenantee. This is usually satisfied by a conveyance of land between those two people which occurs by the same deed that includes the covenant, but it can also be through a covenant created in a lease or in the transfer of an easement.

– Traditionally: horizontal privity was required for both the benefit and the burden to run with the land
– modernly: horizontal privity is not required for the benefit to run, just for the burden

Question 12

What is vertical privity as an element of a covenant running with the land?

Answer 12

The relationship that exists between an original party to a running covenant and the successor in interest to the original party. The plaintiff must show that the successor “stepped into the shoes of“ the original party by taking the entire interest held by the original party.

Traditionally, vertical privity is required for both the benefit and the burden to run

Question 13

Under vertical privity, what is required for the benefit to run with the land and the burden to run with the land?

Answer 13

– Burden: privity only exists when the holder of the servient estate transfers all of his interest in the servient estate to the new owner
– benefit: privity can exist when the holder of the dominant estate is transferring all or part of his interest

Question 14

What is touch and concern as an element of a covenant running with the land?

Answer 14

A covenant must exercise direct influence on the occupation, use, or enjoyment of the premises in order for it to touch and concern the land.

Traditionally, both the benefit and the burden had to touch for either the benefit or the burden to run

Question 15

What is required for the benefit to touch and concern the land and for the burden to touch and concern the land under running covenants?

Answer 15

– benefit: touches if it INCREASES the value of the benefitted property
– burden: touches if it DECREASES the value of the burdened property

Question 16

What is required for the notice element of a covenant to run with the land?

Answer 16

– Originally: this was not a requirement to run
– when recording statutes were introduced: this requirement was grafted in.

The parameters of notice are determined by the relevant recording statute, and notice under the recording acts is necessary for the burden to run

Question 17

If a plaintiff can’t show that a covenant was in writing, what are his options?

Answer 17

He can still prove the covenant through part performance or estoppel

Question 18

If a plaintiff can’t show the intent that is needed for a covenant to run, what can he do?

Answer 18

He can show intent through a common scheme

Question 19

How does a common scheme work with regard to equitable servitudes?

Answer 19

These usually exist in subdivisions. If a sufficient number of lots are burdened by the same covenant, the court may find that a common scheme binds all of the lots in the subdivision, including those that do not have the restriction written into the deed.

These factors show a common scheme:
– a large percentage of lots expressly burdened
– oral representations to the buyers
– statements in written ads, brochures, or maps given to the buyers
- recorded plat maps or declarations

Burdens are not imposed on lots that are conveyed before the conveyance of the first lot with an express restriction. But the burden will be imposed on lots if a common scheme was evident at the time of conveyance. The original subdivider can enforce the benefit unless he sold all the property.

Traditionally a benefit could not be enforced by a buyer who purchased his lot before the conveyance of the burdened lot. Although some jurisdictions say the existence of the common scheme is enough to show the subdivider intended to benefit all purchasers. While other jurisdictions say a previous grantee can sue a third-party beneficiary

Required elements: you don’t need any type of privity, the intent must be shown for both the benefit and the burden, touch and concern must be shown for both the benefit and the burden, and notice is determined according to the relevant recording statute

Question 20

How do you terminate a covenant?

Answer 20

Through merger, release, abandonment, estoppel, or changed circumstances/change of neighbourhoods doctrine

Question 21

What is the change of neighbourhoods doctrine that applies to termination of a land covenant?

Answer 21

When the neighbourhood or circumstances have changed so greatly that it no longer makes sense to enforce the restriction, the restriction will be deemed terminated

Question 22

Do property owners’ associations have standing to enforce a restrictive covenant?

Answer 22

Yes, and when the court is examining whether they have acted properly, there is a rebuttable presumption that the association’s board members are honest, well-meaning, and acting through decisions that are informed and rationally undertaken in good faith. So a board will not have breached any duty of care for making a good-faith error of judgement

Question 23

What is an easement?

Answer 23

An interest in the land of another

Question 24

What are the different types of easements?

Answer 24

– affirmative
– negative
– appurtenant
– in gross

Question 25

Are most easements affirmative or negative?

Answer 25

Affirmative

Question 26

What is an affirmative easement?

Answer 26

Gives the holder the right to do something on the land of another. Ie: Alpha has the right to walk across B’s land

Question 27

What is a negative easement?

Answer 27

Something that gives the holder the right to prevent a landowner from doing something on his land. These must always be in writing I.e.: A may prevent B from building a house that blocks light to A’s land

Question 28

What are the four types of negative easements?

Answer 28

Light, air, water, and lateral and of subjacent support

Question 29

What is an easement appurtenant?

Answer 29

This requires a dominant and servient estate Ie: A has the right to cross over B’s property from the road to reach A’s property. – A has a dominant estate because the easement benefits A. This means A has an easement appurtenant – B has the servient estate because his land is burdened

Question 30

What is an easement in gross?

Answer 30

This is personal in nature and results in a servient but not a dominant estate I.e.: a utility company has a right to lay cable across A’s land. The cable helps the company. A’s land is the servient estate because it is burdened, but there is no dominant estate. The benefit of the easement is personal to the utility company, so they have an easement in gross

Question 31

What is a profit?

Answer 31

The right to take resources from the land of another. Examples: soil, timber, minerals. Ie: A has the right to take gravel from B’s land

Question 32

What is a license?

Answer 32

A privilege to do something on someone else’s property

Question 33

What are the three different ways you can create an easement?

Answer 33

- Expressly in writing - by implication - by prescription

Question 34

Why must an easement be in writing?

Answer 34

Because it is an interest in land, so the SOF requires it

Question 35

What are the three different ways you can create an easement by implication?

Answer 35

– through prior use – by necessity – Implied by plat

Question 36

What is required for an easement to be implied by prior use?

Answer 36

– Severance of title to land that was previously held in common ownership – the use was in existence at the time of severance – the use was apparent and could be discovered upon a reasonable inspection – at severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract

Question 37

How do you get an implied by necessity easement?

Answer 37

– There must be a severance of title to land that was previously held in common ownership - and strict necessity for the easement at the time of severance Ie: O owns land that is bordered by a road on the east and dense forest on all other sides. A lives in a house at the northwest corner and drives to and from his house on a gravel road across his land. O conveys the west half of the land, and when A tries to use the road, he finds that O has erected a barrier. A has an implied easement because O initially owned the entire tract, then severed it, and when he conveyed it, A had no direct access to his parcel because it was surrounded by O’s land and forest on all sides. A’s estate is landlocked, so that satisfies the strict necessity requirement and thus A has an easement implied by necessity

Question 38

How can you have an implied by plat easement?

Answer 38

A purchaser that buys a lot in a platted subdivision usually acquires an implied private easement to use any streets, alleys, and parks shown on the plat

Question 39

How do you acquire an easement by prescription?

Answer 39

There must be proof of the use of the property that is: – open and notorious – actual – continuous [traditional period is 20 years] – hostile – exclusive [the use is not shared with the world, but the user can share use of the easement with the owner]

Question 40

What is the difference between the creation of a profit and license?

Answer 40

– Profits can only be created expressly or by prescription | – licenses do not need a writing or consideration to be created

Question 41

How do you determine the scope of an easement?

Answer 41

The language that creates the easement usually limits its use, and if it is present, it is enforced If the language is not specific, the easement holder can make reasonable use of the easement

Question 42

What does it mean to “surcharge the easement”?

Answer 42

Overuse the easement beyond what is reasonable. This does not result in termination, but it entitles the owner of the survient interstate to sue for damages caused and/or to seek an injunction to stop future surcharging

Question 43

How do you transfer an easement or a profit?

Answer 43

Both the benefit and burden can be transferred if these rules are followed: – when the dominant tenement is transferred, the benefit follows the transferred estate, even if the deed doesn’t specifically mention it – traditionally the benefit of an easement in gross could not be transferred, but modernly it can if the grantor intends for it to be and the easement is commercial in nature – for express easements, transfer of the servient estate results in accompanying transfer of the burden, so long as the holder of the dominant estate has complied with all the provisions of the recording statute – licenses are personal, so they are not transferrable unless the licensor intends them to be

Question 44

When it comes to the rules for easements and profits, how are those treated?

Answer 44

The same, all rules governing alienation of easements, termination, are also applicable to profits

Question 45

What are the different ways you can terminate an easement?

Answer 45

– by expiration of the term of the easement if specified in the easement – release: the dominant estate can release his interest – merger: the dominant and servient estate come to come into common ownership - Abandonment: if there’s proof of intent to abandon and an affirmative act in furtherance of that – estoppel: if there’s proof of an act or representation regarding the easement, justifiable reliance on the act/representation, and damages – prescription: use adverse to the easement for a statutory. – Eminent domain: a governmental body acquires the survient estate – the servient estate is purchased by a BFP without notice, so it is free of the easement

Question 46

When does a license terminate?

Answer 46

– On the death of the licensor – on the conveyance of the servient estate – if it is revoked

Question 47

What are the two situations that a license becomes irrevocable?

Answer 47

– A license coupled with an interest | – an executed license

Question 48

Can a licensor revoke a license?

Answer 48

Yes, they are revocable at will except in two situations

Question 49

How does a license coupled with an interest make a license irrevocable?

Answer 49

If one person owns property on the land of another and has a privilege incidental to that personal property to come on the land to use or recover it, then the license is irrevocable

Question 50

How does an executed interest make a license irrevocable?

Answer 50

This is based on estoppel, so if there has been a substantial expenditure of funds in reliance on the promisor’s promise to allow the promisee to use the land, that is sometimes deemed to be the equivalent of an easement

Question 51

What is a fixture?

Answer 51

Chattel that has become so connected to real property that a disinterested observer would consider it to be part of the realty. Chattel becomes a fixture if: – it is annexed to the real property – it has been appropriated to the use of the land, and – the annexor intends it to be a fixture

Question 52

Identify whether these things are fixtures: – a bookshelf that has been attached to the wall – a bookshelf that has been built into the wall

Answer 52

- The one that is attached to the wall retains its separate identity after the attachment, so it is not a fixture - The one built into the wall becomes part of the realty, and is a fixture

Question 53

How do you know if chattel has been annexed to the land?

Answer 53

– it is permanently attached to real property or to something appurtenant to the real property – it would be difficult to move solely based on its own weight – it is constructively annexed to the property by being specially designed for the property

Question 54

Why would a chain-link fence be deemed to be annexed to the land?

Answer 54

Because posts were driven into holes in the ground, which makes it permanently attached to the real property

Question 55

Why would a heavy large statue in a backyard be considered annexed to the property?

Answer 55

Because it is difficult to move based solely on its own weight

Question 56

Why would hurricane shutters that are custom designed for a house be considered annexed to the house, even if they are removed and stored in the garage in the winter?

Answer 56

Because they were specially designed for the property

Question 57

When does annexed chattel become a fixture?

Answer 57

If it is so necessary or convenient to the use of the land that it is regarded as part of the land

Question 58

Would these items be considered annexed? - chairs in a movie theater – chairs in a kitchen

Answer 58

Chairs in the theatre would be deemed appropriate it to the use of the land, so they would be annexed. Chairs in a kitchen would not be

Question 59

What is the intent to annex chattel determined?

Answer 59

According to a reasonable person standard. The fact finder considers the nature of the chattel, the degree of annexation, and the appropriateness of the chattel to the property’s use

Question 60

When title and land are own by the same person, does a deed to the real property also transfer all the fixtures on the property?

Answer 60

Yes, unless the buyer and seller agree on something else

Question 61

If an owner of chattel affixes it to his land, and then gets a mortgage on the land, does the mortgage extend to both the land and the fixture?

Answer 61

Yes, and if the title is attached to land that already had a mortgage on it, the prior mortgage also encompasses this chattel (weird rule)

Question 62

If someone owns land that has a fixture on it, is he free to sever the chattel?

Answer 62

Yes, and when that happens, the fixture regains its status as personal property

Question 63

What is a constructive severance?

Answer 63

A fixture can be severed from the land if the owner of the land expressly reserves the fixture in a contract of sale for the land

Question 64

What is a trade fixture?

Answer 64

A chattel that is annexed to the land by a tenant to advance his business or trade

Question 65

Can a tenant remove his own trade fixture during the term of his tenancy?

Answer 65

Yes

Question 66

What are the rules regarding trade fixture removal at the end of a tenancy?

Answer 66

– Common law: if the tenancy is for a definite term, a tenant forfeits his trade fixtures if he fails to remove them before the lease term ends – modernly a tenant can remove trade fixtures within a reasonable time after the expiration of his lease

Question 67

If you lease land to Trevor as a store for three years, and in that time he puts shelves on the walls of the building. When the term ends, those shelves are still there. What happens to the shelves?

Answer 67

– common law: the shelves remain fixtures on the property and they now belong to you because Trevor did not remove them before the end of the term – modernly: Trevor has not forfeited the shelves, he is now given a reasonable time to remove the shelves

Question 68

How does zoning power get granted?

Answer 68

The power to zone is granted by statute from a state to a city, county, township, or political subdivision.

Question 69

What is zoning?

Answer 69

The ability to divide geographical areas into zones where some uses are permitted and others are not

Question 70

What are different zoning classifications?

Answer 70

Residential, commercial, agricultural, industrial, special, and mixed use

Question 71

If you want to put in an airport in a district that is currently zoned agricultural, what do you have to do?

Answer 71

Get the land rezoned to add spatial as an additional classification

Question 72

What are the things that zoning regulations can regulate?

Answer 72

- the use of land, buildings, and structures – the size, height, area, location, construction, repair, and removal of structures – the areas and dimensions of land, water, and air space to be occupied as well as open spaces to be left on occupied - the excavation or mining of soil or other natural resources

Question 73

If property is found to be out of compliance with a zoning code, what usually happens?

Answer 73

The applicable political subdivision will issue a notice of zoning violation with instructions to cease and desist from a certain use, or on how to modify the property or cure the issue. If the owner does not protest the notice and does not bring the property into compliance, the political subdivision can get a court ordered injunction or take other steps to enforce the notice

Question 74

What are possible punishments for not taking steps to remedy a zoning violation?

Answer 74

– Civil fines: these can accumulate daily until compliance is achieved – criminal misdemeanor: some jurisdictions say that uncorrected violations can lead to this – recording: some states say that violations will be recorded if they are not fixed within the deadline so that future buyers are aware of the violation

Question 75

Is it possible to challenge a notice of zoning violation?

Answer 75

Yes, you can protest the notice by appealing to the local board of zoning appeals. If relief is not granted, you can appeal to a court

Question 76

Is a tenant responsible for zoning violations on the property?

Answer 76

Yes, if the tenant or occupier is committing the violation. No matter what, the owner is always liable for zoning violations too

Question 77

Can an owner be liable for a criminal misdemeanour that is committed by his tenant?

Answer 77

No because the element of intent is lacking

Question 78

How does procedural due process apply to zoning violations?

Answer 78

This requires that notice and a fair hearing be given to a person where he gets the opportunity to be heard by a neutral decision-maker. If he appeals a notice of zoning violation, there must be a public hearing. If he doesn’t receive relief there, an appeal to the courts is provided. The same is true if a property owner requests a variance from the zoning code. He’s entitled to a public hearing that has been noticed to all who might take an interest, including nearby property owners. If relief is not granted, an appeal to courts is provided. When that appeal is taken, the courts review the administrative decision to see if it was legal, arbitrary, capricious, or unsupported by a preponderance of the evidence

Question 79

How does substantive due process factor into zoning violations?

Answer 79

Zoning ordinances cannot be arbitrary, capricious, or not reasonably related to public health, welfare, or safety. If they are any of those things then they violate substantive due process

Question 80

What does equal protection apply to zoning violations?

Answer 80

If a zoning ordinance treats similarly situated people differently, but there’s no fundamental right impacted and no suspect classification, then the rational basis test is applied. The ordinance is upheld if it has a rational relationship to a legitimate government interest such as public health, safety, or welfare

Question 81

When can a land-use regulation be considered a taking?

Answer 81

If it denies the owner of all reasonable economically beneficial uses of his land

Question 82

If a land-use regulation just decreases economic value of land, how do courts determine if a taking has occurred?

Answer 82

Through a balancing test of these factors: - the economic impact of the regulation on the claimant – the extent the regulation interfered with distinct investment back expectations, and - the character of the governmental action

Question 83

If rezoning by a political subdivision is not consistent with a comprehensive plan for that area, then what must it be based on?

Answer 83

Changed conditions in the land, neighborhood, environment, or public opinion

Question 84

If you rezone a particular piece of land, who is in charge of that, and what is needed? If you’re doing a broad rezoning, who is in charge of that?

Answer 84

– piece of land: quasijudicial that requires procedural due process – broad rezoning: legislative

Question 85

If a property owner wants to use their land in a way that is prohibited by zoning, what can the owner do?

Answer 85

He can petition for rezoning, but it’s easier to get a use variance or special use permit

Question 86

What is nonconforming use in relation to zoning?

Answer 86

These are uses that are permitted by zoning statutes or ordinances to continue even though similar users would not be permitted in the area. These cannot be expanded or rebuilt after they have been substantially destroyed, and they can never be extended or intensified. Some local ordinances require that they be amortized/reduced over a specified period until they be terminated. BUT, it is possible for the owner to make insubstantial changes and reasonable alterations

Question 87

What is a variance in relation to zoning?

Answer 87

Permission by local zoning authorities to use property in a way that is forbidden by the zoning ordinances in order to alleviate conditions that are peculiar to a particular parcel of property.

Question 88

What’s the difference between an area restriction and the use restriction in relation to zoning?

Answer 88

An area restriction makes demands on the physical space (need 50 ft.² of landscaping on each plot) and a use restriction makes demands on how the property can be used (all property in the zone must be retail)

Question 89

If someone wants a variance from an area restriction, what do they have to do?

Answer 89

Show that there are practical difficulties in meeting the requirements of the zoning code, or that the requirements are unreasonable, or that they create an undue hardship. Ie: an accountant buys land in a commercial district to set up a business office, but the zoning requires 50 ft.² of landscaping near the front door, but his land has no physical space for that, so he seeks an area variance

Question 90

If someone is seeking a variance from a use restriction, what do they have to do?

Answer 90

The must show undue hardship which means that without a use variance, there’s no viable use of the property. Ie: if you inherit a sawmill that has not been used for many years and it is now in a district that has been rezoned to retail, the sawmill is not viable under that designation and it is not appropriate as a retail store. So you could seek a use variance to allow it to be remodelled into a warehouse

Question 91

What is a special use permit?

Answer 91

This is required for uses in an area that is not zoned for those uses, but which would be beneficial to the public welfare and compatible with the area. In order to get this there must be a public hearing that has been noticed to all who might have an interest in the application, which includes nearby property owners. Ie: A hospital is planned to be built in residential district, so a special use permit is needed

Question 92

What is a conditional use permit?

Answer 92

This is required for uses in an area that is not zoned for those uses, but which would be beneficial to the public welfare and compatible with the area if certain conditions are met. They are only granted if the applicant agrees to meet additional conditions that are imposed to reduce the potentially objectionable impact of the use. Applicants are entitled to a public hearing that has been noticed by anyone who might have an interest including property owners nearby. I.e.: a group home for the developmentally disabled wishes to operate in a residential area. A conditional use permit can be granted on the condition of the home being fully staffed at all times and that staff not park on the street

Question 93

What is spot zoning?

Answer 93

When a parcel or small area is zoned for a use that is inconsistent with the rationale of the overall plan or ordinance. This is illegal when it’s designed just to serve the private interests of a few landowners, but it’s permissible if the purpose is to further the welfare of the entire subdivision

Question 94

What is an exaction?

Answer 94

An approval of the use of land in exchange for money or a dedication of land. This is allowed only if the local government can show that the increased public need is causally related to the owner’s use, and that the amount of the exaction is approximately equal to the additional public cost imposed by the US. Ie: the owner of a supply store applied for a permit to pave his parking lot. The city could not insist that he also dedicate land to a greenway and make a bicycle path

Question 95

What are the rights that an owner of real property has with regard to support?

Answer 95

An owner of real property has the exclusive right to use and possess the surface, airspace, and soil of the property

Question 96

What are the rights of a real property owner with regard to lateral support?

Answer 96

– The owner has no liability if his neighbour’s land subsides caused by NATURAL conditions on the owner’s land. – But he may be strictly liable if his EXCAVATION caused adjacent land to subside/sink – if adjacent land is improved: strict liability applies if the land would’ve collapsed in its NATURAL STATE - the adjacent land would not have collapsed in its natural state, the land owner is only liable for damages from negligence

Question 97

What are the rules with regard to subjacent support?

Answer 97

– The right of support includes land in its natural state and buildings that existed on the date the adjacent estate was severed – the underground landowner is liable for damages to later erected buildings only if he was negligent – underground occupants such as mining companies are liable for negligently damaging springs and wells

Question 98

What are riparian rights?

Answer 98

Rights in water enjoyed by an owner of land that abuts a natural navigable river, stream, or lake

Question 99

What are the three major approaches to riparian rights?

Answer 99

1. Natural flow doctrine: landowner can make unlimited use of riparian water for domestic or natural things such as drinking and bathing. He can use it for artificial sources like irrigation only if the use doesn’t substantially diminish the flow of the body of water. Seldom followed 2. Reasonable use doctrine: riparian owners can make reasonable use of riparian water as long as the use doesn’t interfere unreasonably with the rights of other riparian owners. This is restricted to riparian land within the watershed. Majority approach 3. Prior appropriation doctrine: this gives the right to use water to the first person to take the water for beneficial purposes. It is still followed in many western states

Question 100

What is diffuse surface water?

Answer 100

Water from rain or melted snow that runs over the surface of land outside of a recognizable body of water

Question 101

What are the three different approaches to diffuse surface water?

Answer 101

– Common enemy rule: owner can use any method to keep diffuse surface water from coming on his land – Civil law rule: owner cannot interfere with the flow of diffuse surface water – reasonable use rule: owner can use reasonable means to alter the flow of diffuse surface water

Question 102

What is underground water?

Answer 102

Water that runs beneath the surface of the land. This includes underground streams where the water flows in a well defined, known, permanent channel. This is governed by the same rules as riparian waters

Question 103

What is percolating underground water?

Answer 103

Water that percolates through the sub-surface of the land

Question 104

What are the three approaches to percolating underground water?

Answer 104

– English rule of capture: land possessors can take as much percolating water under their land as they want – reasonable use test – correlative rights test: all owners of land situated over a pool of underground water have equal rights to use the water – prior appropriation statutes