LAND USE CONTROLS - Private

Question 1

What is an equitable servitude?

Answer 1

The primary modern tool for enforcing private land use restrictions.

It is a promise concerning the use of the land that
1. benefits and burdens the original parties to the promise and their successors and
2 is enforceable by injunction

Question 2

What are the requirements for the burden to run for equitable servitudes?

Answer 2

In order for the ES to bind the original ppromissor successors

1. the promise must be in a writing that satisfies the Statues of Frauds or implied from a common plan
2. the original parties must intend to burden successors
3. the promise must touch and concern the land
   4the successor must have notice of the promise

Question 3

What are the requirements for the benefit to run in an equitable servitude?

Answer 3

3 elements required for the benefit to run to successors:
1. the promise must be in a writing or implied from a common plan
2 the original parties must intend to benefit successors
3 the promise must touch and concern land

Question 4

What is a real covenant?

Answer 4

A promise concerning the use of land that
1. benefits and burdens the original parties to the promise and also their successors
and
2 is enforceable in an action for damages.
A real covenant may either be affirmative (a promise to perform an act) or 2 negative (a promise not to perform an act)

Question 5

What are the two sides of a real covenant?

Answer 5

1. the burden - the promissor’s duty to perform the promise
2. the benefit - the promissee’s right to enforce the promise

Question 6

What are the two traditional methods to create a promise concerning land use that burdens or benefits successors?

Answer 6

Real Covenants and Equitable servitudes

Question 7

What are the requirements for the burden to run (successor to the original promissory to be obligated to perform the promise) in a real covenant?

Answer 7

1. The promise must be in a writing that satisfies the Statue of Frauds.
2. The original parties must be intend to bind their successors.
   3 The burden of the covenant must “touch and concern” the land.
3. horizontal privity must exist.
4. vertical privity must exist.

Question 8

What does touch and concern mean in real covenants?

Answer 8

Must relate to direct use or enjoyment of the land. Example that would not touch and concern. Can’t dance at parties.

Question 9

What is horizontal Privity in Real Covenants?

Answer 9

The original parties have a special relationship in order for the burden to run.
Ex. Between promissory and promissee who have mutual, simultaneous interest in same land (landlord / tenant)

Question 10

What are the remedies for breach in a real covenant?

Answer 10

Breach is measured by the difference between the fair market value of the benefitted property before and after the defendant’s breach.

Question 11

What is vertical Privity in RC’s?

Answer 11

Concerns the relationship between the original party and his successors. VP exists only if the successor succeeds to the entire estate in land held by the original party.

Question 12

What are the four elements for the benefit of real covenant to run to successors?

Answer 12

1. the covenant must be in a writing that satisfies the statue of Frauds
2. the original parties must intend to benefit their successors
   3 the benefit of the covenant must touch and concern land
   4 vertical privity must exist

Question 13

What are the two major defenses to enforcement of a real covenant?

Answer 13

Abandonment and changed conditions doctrine

Question 14

What is the changed conditions doctrine?

Answer 14

A covenant becomes unenforceable when conditions int he area of the burdened land have so substantially changed that the intended benefits of the covenant cannot be realized.

Question 15

What is abandonment in RC?

Answer 15

Occurs when the conduct of the person entitled to the benefit of the covenant demonstrates the intent to relinquish her rights.

Question 16

What is a planned unit development?

Answer 16

A broad category that includes a variety of residential developments, ranging from a small cluster of tract houses to gated communities.

Question 17

What are the rights of condominium owners?

Answer 17

1 holds fee simple title to an individual unit.
2. owns an undivided interest in common areas

Question 18

What are the 5 categories of affirmative easements?

Answer 18

1. express easement
2. easements implied from prior existing use
3. easements by necessity
   4 prescriptive easements
   5 irrevocable licenses or easements by estoppel

Question 19

What is an easement?

Answer 19

a nonpossessory right to use land in possession of another.

Question 20

What is the dominant tenement in easements?

Answer 20

A’s land that is benefited by the easement.

Question 21

What is a servient tenement in easements?

Answer 21

the land that is burdened by the easement.

Question 22

What is an easement appurtenant?

Answer 22

Benefits the easement holder in his capacity as owner of the dominant tenement.

Question 23

What is easement in gross?

Answer 23

Benefits the holder in a personal sense, whether or not he owns particular land.

Question 24

What is an express easement?

Answer 24

Voluntarily created in a deed, will, or other written instrument. It may arise either by grant or by reservation.

Question 25

How do you create an express easement?

Answer 25

writing must identify the parties, manifest an intent to create an easement, describe the affected land, and be signed by the grantor.

Question 26

What are the 3 elements required for an easement implied from prior existing use?

Answer 26

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

Question 27

What are the two elements required for easement by necessity?

Answer 27

1 severance of title to land held in common ownership
2. strict necessity at the time of severance.
Strict necessity exists when the parcel in question has no legal right of access to a public road.

Question 28

What is necessary for a prescriptive easement?

Answer 28

1 open and notorious
2 adverse and under claim of right
3 continuous and uninterrupted for statutory period.

Question 29

A license that becomes irrevocable becomes the functional equivalent of an easement. what are the elements?

Answer 29

1 a license
2 the licensee’s expenditure of substantial money or labor in good faith reliance, and
3 the licensor’s knowledge or reasonable expectation that reliance will occur.

Question 30

What is a license?

Answer 30

an informal permission that allows the licensee to use the land of another for a narrow purpose. ex. spectator at a football game.