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Flashcards in Property 3 - Land Use Deck (45)
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Covenants - Intent

It must be intended that this restriction run with the land to future owners. In a majority of jrdx, if T&C is established, the element of intent is presumed.


Covenants - Notice

Servient estate only. The current owner of the servient estate must take with notice (any of the 3 kinds) of the restriction.


Covenants - Horizontal Privity

Requires privity of contract in connection with the land:
1. Grantor-grantee privity.
2. Landlord-tenant privity.
3. Mortgagor-mortgagee privity.


Covenants - Vertical Privity

Privity of estate. On the SERVIENT SIDE, the grantor must be transferring ALL of his or her ownership interest to the grantee. Doesn't matter if it's all interests on dominant side.


Equitable Servitude

3 requirements: 1. T&C 2. Intent 3. Notice. Those are all established in the same way they are in covenants.


5 Ways to Terminate Covenant or Equitable Servitude

1. Merger.
2. Written release. (By the owner of the dominant estate.)
3. Abandonment coupled with words or conduct showing intent to abandon.
4. Estoppel. If the D estate does something that leads the owner of the S estate to believe the restriction will no longer be enforced and the S
estate detrimentally relies on that.
5. Changed circumstances so that the reason behind the restriction is no longer valid.


Statute of Frauds

Applies to both covenants and equitable servitudes. EXCEPTION: Can be oral when it is the implied reciprocal servitude. Works with negative restrictions only and requires (1) must be shown that the intended restriction is part of a common scheme or plan for development of the area; (2) the current owner of the servient estate must take with notice of the restriction.


Zoning Ordinances

Not really a property issue. You can challenge them under due process, equal protection, or first amendment.


Eminent Domain

The government may take a fee simple interest in property, an easement, or an interest in an estate in the property.



Is an unreasonable interference with the use and enjoyment of land.


Right to Lateral Support

An absolute right. If neighbor deprives you of the support, they're strictly liable. However, if you've improved your land you have to ask whether the subsiding of your land would have occurred with or without the improvement. If it would have occurred even without the improvement: still strict liability. If the weight of the improvement caused the land to subside, the digger is liable only if they were negligent in taking away the support.


Right to Subjacent Support

Absolute right. Digger is strictly liable for damage to your land and any damage to improvements that existed at the time the sub-surface rights were granted. For any improvements added after sub-surface rights were granted, digger is only liable if he was negligent.


Water Rights

Riparian (Majority) - anyone with land that touches the water has a right to make reasonable use of the water.
Prior Appropriation (Minority) - First in time first in right.



1. If seller severs crops before delivering it to buyer -- sell of goods governed by UCC.
2. If seller sells the crops still attached to land - sell of real property.


3 Things of Easements

1. Creation
2. Scope
3. Termination