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Flashcards in Property Deck (36)
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Tenancy in common

Tenants in common concurrently own the same or different percentage interests in real or personal property. Each tenant has the right to possess the whole, regardless percentage share.
Interests are alienable, devisable, and inheritable.
A deed that conveys in an ambiguous language will generally be interpreted as a tenancy in common. Clear statement required to create a joint tenancy (with right of survivorship).


Joint tenancy

A joint tenancy’s distinguishing feature is the right of survivorship. When a joint tenant dies, the interests of the remaining joint tenants are enlarged proportionately because everyone is seised of the whole.

In common law, if one of three severed, the other two would still have JT, the one who conveyed would have a TC.


Unities of time?

Joint tenancy can only exist if cotenants obtain their interests at the same time, from the same instrument, the interests are identical and undivided, with tenants having the right to possess the whole.


Tenancy by the entirety

Tenancy limited to married couples, which includes a right of survivorship but cannot be severed unilaterally.


Improvements to property

Each co-tenant can make improvements to property that are in good faith (not waste) and actually benefit the land. Law allows this co-tenant to be compensated by others based on increased land value. Co-tenant receives the enhancement of the property value only



To show an ouster, a tenant in common must show acts of possession inconsistent with and exclusive of their rights as a co-tenant that would be equal to an eviction between a landlord and tenant, as well as knowledge on the part of his co-tenant of his claim of exclusive ownership.


Effect of Divorce on Joint Tenancy

Split of authority: A divorce decree that is silent with respect to property held jointly with right of survivorship does not destroy survivorship provisions; the parties must have a clear intent to partition the tenancy.


Effect of Divorce on Tenancy By Entirety

Split of Authority:
• Some courts hold divorce terminates tenancy by the entirety and makes a tenancy in common because intent of parties is likely not to hold property together. Also, tenancy in common is default absent clear statement. Others hold divorce converts tenancy by the entirety to a joint tenancy (with right of survivorship)


Effect of Unilateral Self-Conveyance on Joint Tenancy

A unilateral self-conveyance may sever a joint tenancy. Intent of parties matters, and there is a presumption in favor of tenancy in common, rather than joint tenancy.


Effect of Conveyance of Lease on Joint Tenancy

When a joint tenant leases his interest in property to a third party, courts do not have a uniform approach to deciding what effect the lease has on the joint tenancy. Could be no severance (if jt dies and they conveyed a lease, share immediately moves to other jt and they can terminate lease), temporary severance, or complete severance (creating TIC with interest going to heirs).


Partition process

Estate may be partitioned in kind (based on acreage) or based on value (severance), but a physical partition based on acreage is preferred unless such a partition would result in prejudice to the owners.



An easement is a right, or servitude, to use or limit use of another person’s land (any non-possessory interest that arises by private agreement between the parties which can be transferred and will bind successors to the original parties)


Affirmative easement

An affirmative easement gives its holder the right to do something on another’s land, the servant tenement.


Negative easement

The negative easement entitles its holder to compel the servant land-owner to refrain from doing something that would otherwise be permissible.


Easement appurtenant

An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land. Two parcels of land must be involved; a burdened parcel (servient tenement) and a benefitted parcel (dominant tenement). Transfer automatically with dominant tenement.


Easement in gross

An easement is in gross when it confers to its holder only a personal or commercial gain, unrelated to the physical use and enjoyment of his own land.


Easement created by express provision

Easement can be granted expressly as long as the intention to grant is manifest on the face of the agreement.


Easement created by implication for necessity

An easement by necessity arises when an estate is severed, leaving the dominant estate without a means of access. The owner of the servient estate has the right to reasonably locate the easement. The party asserting the easement must prove that it is strictly necessary for the enjoyment of the property, and it is not dependent upon the existence of any established route or quasi-easement prior to the severance of the estate. Terminates when necessity ceases.
o Unity of Title: Servient and dominant estates at one time held by common owner. During unity of title (common ownership) an apparently permanent and obvious servitude was imposed on one estate in favor of other;
o Severance of common ownership: One tract conveyed to another
o Strict Necessity: Easement necessary for fair enjoyment of property at severance. Generally defined as absolute necessity such as where property is landlocked or otherwise inaccessible. (navigable river under common law – no strict necessity; different now)
o Necessity Continues


Easement created by implication from prior use (quasi-easement)

An easement may be implied if prior to the time the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part” and a court determines that the parties intended the use to continue after division of the property. It is called a quasi-easement because an owner cannot hold an easement on his own land.

1) Reasonably necessity at severance to continue the preexisting use for the benefit of the dominant estate. Some courts require that strict necessity be shown, but most courts require only that reasonable necessity be shown.
2) Open and obvious use: “Apparent” means that a grantee could discover the existence of the use upon reasonable inspection and is permanent. A non-visible use may still be “apparent” if surface conditions or the like would put a reasonable person on notice of its existence.
3) Continuous use
4) Permanent
5) Unity of title: Common ownership (one person) at time when estate was transferred.
6) Q/E: Owner had an obvious and apparently permanent quasi easement before severance


Easement created by implication by reference to a plat

when a person buys a lot in a subdivision in reliance on a subdivision plat which shows where streets in that subdivision are located, that buyer has an implied easement to use the street as depicted on the plat


Easement created by prescription

Acquiring an easement by prescription is analogous to acquiring property by adverse possession. They are essentially stolen easements. Rationale for Doctrine: Productive use of land; quiet titles; punish people who sit on their rights.

1. Statutory Period: Property must be used for the statutorily specified period.
2. [Excusive Use?: Some courts require that the user exclude all others, e.g., act as the owner of the property, as in adverse possession, in using the easement. On test, will have to argue if the property is being exclusively used]
3. Adverse: User must act inconsistent with owner’s rights as property owner. Use must occur without the owner’s permission. The user need not intend to violate the owner’s rights. He must merely proceed without recognition of the owner’s authority to permit or prohibit the use.
4. Continuous and uninterrupted: User must exercise use as frequently as convenience or necessity requires. If owner interrupts the use, owner must not allow the use (helps to demonstrate that use is adverse).
5. Open and notorious: Use must be discoverable upon inspection. Use of property must be visible so as to provide the landowner (or at least a “diligent landowner”) with constructive notice.
6. [Owner Acquiescence?: Required in some jurisdictions]


Easement created by express reservation

Easements may also be expressly reserved by the transferor. Arises when a grantor conveys title to land, but reserves the right to continue to use the tract for a special purpose.


Scope of easements use and modification

Easements created by general grant or reservation are not affected by a reasonable change in the use of the dominant.
Dominant holder has the right to reasonably alter the easement so long as 1) its use is not entirely different and 2) so long as it does not overburden the servient estate.
No relocation by unilateral act.


Easement maintenance

Easement holder (dominant estate) has a duty to maintain the easement because he benefits from and uses the easement. Limit: Dominant estate may not materially alter the easement to interfere with servient tenement’s use.


Easement transferability

Easements appurtenant are transferred with the dominant estate whether they are mentioned in the deed or devise, but easements in gross can generally not be transferred. Rationale: Want to ensure that land is not overburdened and tied up for long periods of time.
Two exceptions:
• Parties Intend to Allow Assignment (language: to heirs and assignees)
• Easement for Commercial Use
- “one stock” rule - allows devisability of easement so long as parties do not overburden servient tenement


Easement termination


Conveyance to a Bona Fide Purchaser without Notice



Licenses privilege their holders to go upon the land of another. But unlike an easement, a license is not an interest in land; it is merely a privilege, revocable at the will of the licensor. A license can be created orally unlike an easement. A license is personal to the licensee and, thus, inalienable. Any attempt to transfer a license results in revocation by operation of law.
Exceptions to revocability:
1) Must be given reasonable opportunity to leave the land
2) Licensee with interest is only terminable if termination does not prevent licensee from protecting his interest.
3) Estoppel


Real covenant

A promise to do or not to do something related to land. Unlike an easement in that it does not the grant of a property interest. Is enforceable when it is capable of running with the land.


Implied Equitable Servitude from Common Scheme

o Common owner;
o One of plots has an express covenant; and
o Common scheme or plan (general conformity, statements by the conveying party or developer, advertisements)


Real Covenant Enforceability

For a covenant to run with the land at law, the following elements are required:

1) The covenant is enforceable in that is in writing, is not against public policy, and is not too vague.
2) The parties intended the covenant to run with the land
3) The purchaser of the burdened property had notice of the covenant
4) Both horizontal and vertical privity exist between original parties and their successors
5) The covenant must touch and concern the land (must sufficiently related to the burden and benefits of the land, and not merely be personal).


Horizontal Privity

Refers to a land transaction between the covenantor and the covenentee. Established by a conveyance from one party to another at the time the covenant is made. At the time promises were made, original parties were in succession of estate.


Vertical Privity

Refers to a land transaction between an original party and that party’s successor. It is universally recognized that vertical privity between the original covenantor and the covenantor’s successor must exist in order for the burden of the covenant to run with the land at law.


Enforcement in Equity

• Intent: Intent of parties that the covenant be enforced still required.
• Touch and Concern, but Not Privity: For a covenant to run with the land as an equitable servitude, it is generally only required that the particular burden or benefit involved touch and concern land. Horizontal and vertical privity are not required.
• Notice: Equity still requires that the party to be burdened by a covenant has had notice of it.
Writing generally found as well to satisfy SOF
A minority of jurisdictions require vertical privity

Changed conditions (ex: now commercial versus residential character)


Adverse Possession

Hostile/Adverse Possession/claim of right (4)
Exclusive Possession (2)
Lasting for statutorily required time period (6)
Uninterrupted – continuous (3)
Visible, Open Notorious (5)
Actually enter & possess (1)


Real Covenant Termination

There is no common law limitation on the duration of real covenants. However, there are some common reasons a covenant might end. Restrictive covenants often contract provisions for their own expiration. They may also be restricted by statute. Finally, they may expire because the parties’ conduct or circumstances have changed.

Covenant Purpose and Changed Conditions: As long as original purpose of the covenants can be accomplished and substantial benefit will flow to restricted area, they will be upheld, even if the property has a greater value if used for other purposes.
• High Standard: Area has to be entirely unusable for the covenants’ purposes (total frustration of purpose). Courts may look both to the land covered by the restrictive covenant and land outside.
o Focus on Area to which Covenants Apply: Court enjoined a subdivision developer from placing a shopping center in a subdivision because the single-family character of the subdivision had not changed even though the area outside had been commercially developed. Western Land Co., p. 402.
o Equitable Approach to Changed Conditions: Court held that the area on the outside of a subdivision had been seriously affected by commercial development, but the area on the inside was still valuable as a residential neighborhood. In order to placate both parties, the court held that restrictive covenants for the exterior property owners had become null and void, but before they could use their property for commercial purposes, a “greenbelt” had to be constructed so as to protect the interior property owners from destruction of the value of their property. Demarco, p.

Impact of Zoning: Zoning is one factor in the changed conditions analysis, but it is not determinative. Generally, homeowners must comply with both zoning and covenants (the most restrictive covenant tends to apply).

Abandonment or Waiver of Restrictive Covenants: Abandonment must be complete (violated for a lengthy amount of time and so general (consistent not sporadic) as to frustrate the original purpose of the agreement). Exceptions to restrictive covenants that do not demonstrate a pattern or purpose to waive is insufficient.

Eminent Domain: Restrictions end and government takes property free from limitation. Division of authority on whether a restrictive covenant is a property right that requires just compensation for taking.


Implied Equitable Servitude

An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The usual remedy is an injunction. Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds.