Non- possessory interests Flashcards
(25 cards)
Types of non-possessory interests (3)
1) Easements
2) License
3) Profit
Easement - Gral
Interest in the land owned by another person consisting in the right use, cross, control entire land or an area of it for specific limited purpose
Easement - Method of creation (4) (PINE) + Estoppel
1) Prescription
2) Implication
3) Necessity
4) Express
+
Estoppel: reasonable reliance
Types of Easement (2)
1) Gross: not appurtenant to any estate in land. When a servient piece of land exists without a dominant piece being affected
2) Appurtenant: Attaches to the land permanently to benefit the owners. Requires 2 parcels of land: servient/dominant
Relevance of gross/appurtenant difference for transferability (“runs with land”)
- Appurtenant: Yes, even w/o deed reference
- Gross: Gral rule - personal -Yes when for commercial purposes / No when for personal purposes
Use/Overuse by dominant land - Consequences
Prohibition for dominant land to abuse/overburden
- modification/expansion is accepted
- Sanction: grounds for injunction (not for termination)
Easement - Prescription - CHO elements
- Continual possession for statutory period (20-year)
- Hostile: not permitted
- Open and notorious
Easement - Implication - Gral
Subdivision from 1 owner lot to 2 or more parcels subject to easement-like use (no express language in deed)
Easement - Implication Types (2) (GR)
- Grant: owner keeps servient land sells dominant land / buyer to show Reasonable Necessity
- Reservation: owner keeps dominant land sell servient land / previous owner to show strict necessity
Easement - Implication CRAN reqs for prior use
- Continuous + permanent
- Reasonably necessary
- Apparent on inspection
- No practical alternative for user
Easement - Necessity (also implied) Reqs (2)
1) Past common ownership
2) Strictly necessary - more than convenience
Easement - Express agreement Types (2)
1) Grant: SOF (if oral turns into license)
2) Reservation: can be for 3rd person
Easement - Express agreement reqs
- SOF + SADD
- Holder with duty to maintain not overuse
Easement - Termination causes (8) LRAMPS + D + BFP
- Lack of necessity (not for express agreement)
- Release/(estoppel): SOF reqs(reliance on oral expression of not use)
- Abandonment
- Merger: btwn dominant/servant
- Physical blockage: not for express/ for servient land it stops prescription
- Severance: no transfer to other person/parcel
+
-Destruction: of servient land (unless intentional)
-Bona Fide Purchaser
Easement - Termination causes - Abandonment
- Physical + objective manifestation of user intention to abandon (non-use is not enough)
- Manifestation has to be unequivocal/decisive/ inconsistent with continued use
Easement - Termination causes - BFP
- When servient land transferred to BFP w/o notice
- Easement binding only if BFP w/ notice of easement
- Constructive notice if easement recorded in the abstract of the property title.
License - Gral NNAPP
- Non exclusive
- Non-Assignable (can not be transferred)
- Personal
- Permissive right to use/enter
+ - Can be oral
- Contract remedies for breach
License - Termination
Revocation at will by grantor
License - Termination - Irrevocable cases (3)
1) When coupled with interest (i.e. mining company w/permission to enter)
2) By estoppel: long-running license w/o discouragement to use - licensee changed position (i.e. permit to use road, licensee build house at the ned of the road)
3) Failed easement: non-compliance with SOF but reliance from holder of license.
Profit- Gral
- Right to go upon the land of another and take some resource from the land.
- Not usually revocable
- SOF reqs for creation
Profit - Types (transferability)
1) In gross: doesn’t run with land
2) Appurtenat: runs with the land
Profit - Difference with easement
1) Overuse can terminate (not only injunction possible)
2) Waste/excessive taking: injunction + dx possible if negative effect upon property
Nuisance - gral
- Applicable on easement/license
- Prohibits interference w/use of enjoyment of property under reasonable person standard
Nuisance - Legal Remedy
Injunction
