Property for final

Question 1

easements restatement

Answer 1

-entitled the owner of such interest to a limited used or enjoyment of the land in which the interest exists;
-entitles the owner to protection as against third persons from interference in such use or enjoyment
-is not subject to the will of the possessor of the land
-is not normal incident of the possession of nay land possessed by the owner of the interest; and,
-is capable of creation by conveyance

Question 2

what does the servient do

Answer 2

land subject to the easement = the servient tenement or easement

Question 3

what doe the dominant do

Answer 3

land benefited by the easement ( if any)

Question 4

affirmative easement

Answer 4

holder has the right do things on the land that the holder could not otherwise do

Question 5

negative easement

Answer 5

holder can prevent the possessor of the land burdened with the easement with the easement from performing certain acts upon the land that the possessor would otherwise be able to perform

Question 6

old negative easements

Answer 6

courts have traditionally limited the kinds of negative easements that could be created. 4 traditionally recognized negative easements: (1) light (2) air (3) lateral support (4) the flow of an artifical stream

Question 7

new negative easement

Answer 7

mostly recognize as “conservation easements” that limit land development for environmental purposes

Question 8

appurtenant easement

Answer 8

easement that attached to an benefit a particular parcel of land [the dominant estate]

Question 9

what types of issues fall under the scope of easements

Answer 9

(1) length, width, and location
(2) authorized uses
(3) anticipated frequency & intensity of uses
(4) whether the easement can be relocated
(5) maintenance & repairs & obligations of the parties
(6) whether the easement holder can use the easement to benefit property other than the original dominant easement
(7) owner’s use of the easement
(8) is the easement granted/ served
(9) consideration
(10) prior use of the land burdened by the use of the easement
(11) the conduct of the parties

Question 10

unilaterally relocating easement [majority]

Answer 10

prohibits the owner of either the dominant/ servient estate from unilaterally relocating the easement when the location is fixed

Question 11

increase of the use of an easement

Answer 11

(1) change of use must be one of intensity rather than type of use
(2) normal increase ins considered contemplated unless the language of the contract states this
(3) increased use must be from the development from the dominant estate. it is permitted as long as it is reasonable

Question 11

unilaterally relocating easements [min]

Answer 11

allows the servient owner so long as the locations allow the dominant owner similar benefits as its original location

Question 11

can the easement holder use the easement to serve property that was not part of the original dominant estate

Answer 11

an owner of a dominant appurtenant easement cannot use/permit the use to serve land that was not part of the dominant estate when the easement was created

Question 12

duty to repair/ maintain the easement

Answer 12

the dominant holder [generally] unless there is express language to contrary

Question 13

what is appurtenant easement - transfer of dominant estate

Answer 13

any transfer of easement automatically transfers unless there is a contrasting agreement
-an appurtenant easement runs with the land

Question 14

transfer of servient estate

Answer 14

any transfer of title, transfers the burden of the easement to the new owner; not binding if the transferee qualifies for protection against tan expressed easement of a bona fide purchaser who does not have notice

in most jurisdictions, a successor to a servient easements who is not a bina fide purchaser

Question 15

what are the types of notice

Answer 15

(1) actual - was told by seller or someone else
(2) constructive (recorded) - known or should have known with a due diligent title search
(3) inquiry - “look and see for yourself”

Question 16

are easements in gross transferable?

Answer 16

for commercial easements in gross there is a rebuttable presumption that the easement is assignable

old and modern view

Question 17

what is the old view for transfering easements in gross

Answer 17

there is a arebuttable presumption that the easement is non-assignable

Question 18

what is the majority view for transfering easements in gross

Answer 18

there is a rebuttable presumption that all easemenet are assignment

(1) unless there is a reason to believe that the parties intended for the easement ot be non-assignable (2)unless the parties could have reasonably expected that the benefit would pass

Question 19

actions by the servient estate owner

Answer 19

the burden if an express express easement will not run if the successor in interest to servient estate is a bona fide purchase

Question 20

how do you do termination by prescription

Answer 20

“adverse possession” of an easement holder’s rights

by the servient owner making adverse use of the easement for the period of time necessary to acquire an easement by prescription

Question 21

how to do a termination of express easement

Answer 21

can terminate in accordance with the terms of creation or through subsequent events

by releasing it in formnal instrument that meet the requirements of creating an easement: (1) time limitation - easement may be limited in duration by the grant; (2) loss of purpose of easement - there is no reason to burden the servient estate when the intended benefit to the dominant estate no longer exists

Question 22

abandonment

Answer 22

(1) must engage in unequivocal conduct manifesting an intent to abandon (2) non-use alone, no matter how long continued, is seldom sufficient ot extinguish an easement

Question 23

improper use

Answer 23

(1) usually not enough to extinguish, but servient owner can get in an injuction; (2) however, court will extinguish of the alternative is to permit misuse or no use at all

Question 24

describe merger

Answer 24

(1)when both the servient estate and dominant estate come to be owned by the same person, the lesser rights of the easement are merge into the greater wonership rights; and the easement is therefore terminated

(2) easement could also be suspended if owner of the easement is given a life estate [or a term of years] in the servient estate [the easement would reappear at the conclusion of the life estate]

(3)other method of termination, eminent domain, mortgage foreclosure and tax sales [3rd party actions]

Question 25

describe estoppel

Answer 25

(1) a reliance on the conduct of the dominant owner that they relied on (2) detrimental reliance of action of the dominant owner

Question 26

describe easements

Answer 26

note to confuse with extinguishing an eaement holder’s rights to use the easement by prescription. an easement can be extinguished through adverse use by the owner of the servient estate

• so if the servient owner sufficiently intercedes with the dominant holders right to access the easement [ and satisfies all the elemtns of the adverse possession in the process] the servient owner can extinguish the easement holder’s right

Question 27

what are the 5 requirements for the burden to run [real covenant]

Answer 27

(1) the original parties must have inted to bind their successors

(2) the burden of the covenant must “touch and concern” the land

(3) horizontal privity

(4) vertical privity

(5) the sucessor must have notice of the covenant

Question 28

describe intent to bind the successors

Answer 28

(1) the intent of the original contracting parties a tthe itme they entered into the covenant

(2) the original contracting parties intented

Question 29

describe the burden of the covenant “touching and concerning” the land

Answer 29

(1) the covenant must relate to the direct use or enjoyment of the land

(2) a covenant that has some economic impact ont he partues ownership rights either enhacning or decreasing the values of the land satisfies the element

(3) in contract, a covenant that requits and ac having no connectio whatsoever to the particular parcel of land

(4) negative covenants/servitudes: these are cocenants not to do a physical action

(5) restrictive covenant can also enhance the value of the benefitted land. even though they may not effect the benefitted owner in the physical use of her land

(6) covenants containing building restrictions have always been held to touch and concern

(7) covenants “not to compete”: the burdened property - a covenant “not to compete” restricts the promisor in the physical use he mau make off his land