Property Midterm

Question 1

what are the issues about scope

interpretation and extent

Answer 1

(1) the length width and location of the easement; (2) the tupes of usues authorized by the easement; (3) the anticipated frequency and intensity of uses of the easement; (4) whether the easement can be relocated by one of the parties; (5) whether the easement holder can use the easement to benefit property other than the original dominant estate; (6) the maintenance and repaire rights and obligations of the parties; (7) other’s use of the easement, including use by the servient estate owner

Question 2

what is the primary goal of the interpretation and extent of evaluating easements

interpretation and extent

Answer 2

to effectuate the parties’ intent with respect to the purpose or uses for which the easement was created

Question 3

what are the two factors for easement language

interpretation and extent

Answer 3

(1) language of the granting instrument is examined first; (2) if the language is clear and unambiguous, it is given affect

Question 4

what is the restatement (third) of property (servitudes)

interpretation and extent

Answer 4

“unless it can be shown that the parties intended otherwise, ‘the holder of an easement or profit is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude”

Question 5

what are the factors for evaluating easement language

interpretation and extent

Answer 5

(1) whether the easement is granted or reserved; (2)the amount of the consideration, if any, that th eoriginal beneficiary of th eeasement gave for th easement; (3) the prior use of the land on which the easement is now located; (4) subsequent conduct of the parties

Question 6

what is the majority rule for changing the location of easements

interpretation and extent

Answer 6

once the location of an easement is fixed, it cannot be moved without the consent of the owners of both the servient and dominant estates

Question 7

what is the minority rule for changing the location of easements

interpretation and extent

Answer 7

the servient estate is permitted to relocate an easement, provided that the relocated easement affords the dominant estate benefits that are similar to those that the dominant enjoyed under the original easement

restatement (third) of property (servitudes) recognizes the minority status, they chose to adapt it

Question 8

what happens when the easement owner differs or exceeds the authorized purpose of the easement?

interpretation and extent

Answer 8

considered a trespass and is not allowed

Question 9

what may happen to the servient when new conditions arrive

interpretation and extent

Answer 9

the servient estate owner may resist these new uses as being excessively burdensome or beynod what they agreed as an allowed use of their property

Question 10

when do tensions arise for new conditions on easements

interpretation and extent

Answer 10

(1) adhering strictly to the parties’ original easement language on the assumption that new uses can be added by mutual modification of the easement; (2) assuming that the parties intended the easement’s uses to reasonably evolve as conditions change, thus allowing benefitical uses similar in type and overal burden on the servient estate

Question 11

what is the restatement (third) of property (servitudes)

interpretation and extent

Answer 11

“where the easement is appurtenant, this creased use must be the result of a normal development o fth edominant estate”

Question 12

what is the standard rule for non-dominant land

interpretation and extent

Answer 12

owner of appurtenant easement cannot use the easement, nor permit its use, for the service of land which was not part of the dominant estate at the time the easement was created

would be considered a trespass

Question 13

what did Heartz v. City of Concord hold

interpretation and extent

Answer 13

allowed use of an easement for non-dominant land owned by the easement holder prior to the creation of the easement

Question 14

what did Grygiel v. Monches Fish and Game Club hold

interpretation and extent

Answer 14

held that there was no mis-use of an easement by third parties to cross the servient estate to get to the dominant estate in order to access a third (non-dominant) parcel for hunting

Question 15

who has to duty to make rempaires on easements

interpretation and extent

Answer 15

the easement owner is asusmed to have a duty to make those repairs necessary so as to not interefere with the servient owner’s use and enjoyment of his property

walker v. boozer

Question 16

what did Lazy Dog Ranch v. Tellurary Ranch Corp hold

interpretation and extent

Answer 16

the easement owner has the irght to make such repairs and improvements as are required to accomplish the purpose of the easement, as long as she does nto unreasonably increate the burden on the servient estate

Question 17

what did Walker v. Boozer hold

interpretation and extent

Answer 17

the servient estate owner has a duty to refrain from interfering with the easement owner’s enjoyment of her rights

Question 18

what did Miller v. Boozer hold

interpretation and extent

Answer 18

the servient owner can use his property in whatever manner he chooses, so long as he does not hinder the use and enjoyment of the easement

Question 19

what is the presumption that the parties intended in easements

easement succession

Answer 19

appurtenant

Question 20

if an appurtenant easement does not specify, does the court assume the easement can be transferable

easement succession

Answer 20

yes, the court assumes the easement to be transferred with the dominant estate

Question 21

what did Burky v. Knowles hold

easement succession

Answer 21

the benefit of the easement runs with the land unless the terms of the transfer or the terms of the creaetion of the easement precludes the benefit from running

Question 22

what happens if the successor to the servient estate purchases the servient estate without notice of the easement

Answer 22

under modern recording statutes, the easement will be extinguished and the new owner of the servient estate will not be subject to the burden of the easement

Question 23

under the restatement third of property servitudes

Answer 23

the easement must be signed, otherwise the court will make a presumption that the benefit of an aeasement in gross is assignable, unless it is found to be personal

Question 24

crane v. crane

Answer 24

the older view, if the primary purpose of the asement is to gain economic benefit, the easement is deemed commercial in nature and there arises a rebuttable presumption that it is assignable

Question 25

tiller v. hinton

Answer 25

if the original parties intended the burden to run, an the successor to the servient estate has notice of the easement, the burden of the easement will pass with teh servient estate so as to be binding on the successor to the servient estate

Question 26

express terms and impossibility

Answer 26

if an easement was created for a specific period of time or to serve a particular purpose, it terminated upon the expiration of this period of when the purpose has been accomplished or can no longer be accomplished

Question 27

release and abandonment

Answer 27

an owner may be terminated his easement by releasing it in a formal written instrument that meets the requirements necessary to create an easement / less formamly, the easement holder can terminate his rights by abandoning the easement ## Footnote third restatement of property

Question 28

misuse and overuse

Answer 28

generally, misuse or overuse of an easement is not sufficient to extinguish it, although the servient owned can get an injunction to enjoin such ecessive use

Question 29

lack of notice

Answer 29

if the easement owner has not recorded his easement, the purchaser does not have actual knowledge of the easement and if an inspection of the premises does not give notice of its existence then the servient owner can terminate the easement rights by selling his property to a bona fide purchaser without notice

Question 30

prescription

Answer 30

the servient owner can also extinguish an easement by making adverse use of the burden parcel for the same period of time necessary to acquire an easement by prescription / burden to establish is high

Question 31

merger

Answer 31

conduct of both the easement owner and the owner of the servient estate together will work to extinguish an easement

Question 32

estoppel

Answer 32

requires actions on part of both parties to an easement; easement owner engages in conduct inconsistent with the continuance of the easement ## Footnote if the servient owner would suffer unreasonable harm by restortation of the easement rights, the easement owner is estopped from asserting these rights and easement is extinguished

Question 33

third party actions

Answer 33

actions by third parties can extinguish easements through such devices as eminent domain, mortgage, foreclosure, and tax sales

Question 34

what three elements are usually required for an implied easement by prior use

Answer 34

severance of land (title); an existing, apparent and continuous use of one parcel; and reasonable necessity

Question 35

severance of land title

Answer 35

land had been held in common ownership into 2 or more parcels wuth seperate ownership

Question 36

reasonable necessitiy

Answer 36

continuation of the use is reasonably necessary for the enjoyment of the benefitted party

Question 37

non-express easements can be created through:

Answer 37

prior use, necessity, prescription, implication from a map or boundary description

Question 38

prescriptive easements

Answer 38

created through actual use, open and notorious, histile, and continuous

Question 39

easements can be extinguished by what

Answer 39

prescription/adverse possession

Question 40

the scope of a non-express easement

Answer 40

courts will permit additional uses of an implied easement that arise from foreseebale changes to the dominate estate as long as there is no unreasonable additional burden on the servient estate

Question 41

implied easements can only be what

Answer 41

appurtenant; ar epresumed to pas with the dominate estate unless the language of trasnfer or surrounding circumstances regarding its creation suggest otherwise

Question 42

what are the two justifications for ercognizing an easement by necessity

Answer 42

(1) the implied intent of the parties (2) the public policy favoring the productive use of land

Question 43

non-express easements/ what will happen one necessity disappears

Answer 43

rights necessary to enjoy the property are included in the easement by necessity, although these rights will terminate once the necessity disappears

Question 44

covenant

Answer 44

affirmative covenant: a promise to perform a particular act

Question 45

equitable servitude

Answer 45

negative covenant or restrictive covenant: a promise not to perform a particular act; remedy is injunction not $

Question 46

real covenant

Answer 46

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 $

Question 47

what is the modern trent for real covenants and equitable servitudes

Answer 47

restatement third of property servitudes; the distinctions between "real covenants" and "equitable servitudes" have been merged as simply "covenants" or covenants" running with the land

Question 48

creation of a real covenant

Answer 48

the law distinguishes between the original parties to teh covenant and their successors; each real covenant ahs two "sides" the burden and the benefit

Question 49

intent of the parties (real covenant)

Answer 49

-the intent that is critical when analyzing whether a covenant 'runs with the land' is the intent of the original contracting parties at the time they entered into the covenant -when a promisee attempts to enforce a covenant against a successor of the promisor, the promisee must show that the original contracting parties intended the promise to run with the burdened land

Question 50

touch and concern

Answer 50

the covenant must relate to the direct use or enjoyment of the land -economic impact on owners rights satisfies the element

Question 51

touch and concern negative servitudes

Answer 51

not to do a physical act still burdens owner in the physical use of her land; restrictive covenant can also enhance the value fo the benfitted land. remember, covenants containing building restrictions have always been held to touch and concern

Question 52

covenants "not to compete"

Answer 52

the burdened property - restricts the promisor in the physical use he may make of his land. the benefited property - enhances the value of the covenantee's commercial value

Question 53

horizontal privity real covenant

Answer 53

-traditionally requries that the original parties have a special relationship in order for the buden to run -exists between the promisor and the promisee who have mutal interests -concerns only the original parties -only requried for the burden to run

Question 54

vertical privity real covenant

Answer 54

-concerns relationship between an original party and its successors -privity exists only if the successor succeeds to teh entire estate in land held by the original party -referred to as strict vertical privity and it is requried for the burden to run with the land

Question 55

notice (real covenant)

Answer 55

-notice established through recording of the original instrument -also satisfied by actual knowledge of a coveant

Question 56

requirement for the benfit to run (real covenant)

Answer 56

1. the original parties intend to benefit their successors 2. the benefit of the covenant must touch and concern the land 3. veticle privity must exist

Question 57

3 elements for equitable servitude to bind the promisor's successors

Answer 57

1. the original parties must intend to burden successors 2. the promise must touch and concern the land 3. the successor must have notice of the promise

Question 58

common plan or scheme

Answer 58

if a developer manifests a common plan or common scheme to impose unifirm restrictions on a subdivision, most courts will conclude that an equitable servitude will be implied; viewed as implied promise; both burdened and benfited

Question 59

how do determine if the covenant runs with the land

Answer 59

look to see who is seeking to enforce the covenant and whether the party seeking to enforce a covenant is seeking to enforce the covenant against an original party to the covenant or a successor