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Flashcards in Real property Deck (195)
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91

5 exceptions to L tort liability

CLAPS:
- COMMON AREAS (must maintain)
- LATENT DEFECTS rule (must warn if known or had reason to know) (not duty to repair)
- ASSUMPTION of repairs (if undertaken must complete reasonably, and liable for negligent repair)
- PUBLIC USE rule (liable for defects which L knows T will not repair, due to nature of defect and length of lease)
- SHORT-TERM LEASE of furnished dwelling

92

EASEMENT - Define

Grant of a non-possessory property interest
that entitles its holder to some form of use or enjoyment
of another's land

93

Land subject to easement is called

Servient tenement

94

Most are affirmative.
Four categories of negative:

Light
Air
Support
Stream water from artificial flow

95

How to create negative easement?

Expressly in writing signed by grantor
No natural or automatic right

96

Distinguish:
Appurtenant easement / held in gross?

Appurtenant: Benefits holde in physical use of property
(Dominant tenement vs Servient tenement) -- need two!
In gross: Personal/pecuniary advantage not related to use of land.
(No dominant tenement)

97

Transferability of easements?

Appurtenant:
Automatically upon sale of dominant estate.
Automatically upon sale of subservient estate unless buyer is BFP without notice of easement!
In gross:
Only easement for commercial purpose transfers automatically.

98

4 ways to create affirmative easement

PING:
Prescription
Implication
Necessity
Grant

99

1. Prescription

Adverse possession:
COAH - ‡†—„
Continuous use for given statutory period (*NY* 10y)
Open notorious use
Actual use
Hostile - without servient landowner permission (if permission - no AP!)

100

2. Implication

Previous use was apparent
Parties reasonable expect that use will survive division, since reasonably necessary to dominant land's reasonable use and enjoyment.

101

3. Necessity

Eg. Conveyed landlocked portion of land.

102

4. Grant

SoF: If >1 must be in writing ("Deed of Easement")

103

Unilateral expansion of orignal scope of easement to benefit non-dominant parcel?

Not allowed.

104

Termination of easement
8 types - END CRAMP

Estoppel - Servient owner materially changes position in reliance on assurance that easement not enforced.
Necessity: Easement created by necessity ends when necessity ends (unless given in writing)
Destruction: of servient land (EXC by sevient owner)
Condemnation of servient estate (eg. gov builds road)
Release: in writing
Abandonment: Easement holder physically demonstrates intention never to use easement again
Merger doctrine: Title to both lands vested in same person -->easement extinguished.
Prescription: Servient owner blocks, extinguished via AP (COAH)

105

LICENSE - define

Freely revocable
Mere privilege
To enter another's land
For a specific/delineated purpose

106

Licenses subject to SoF?

No!

107

What can bar revocation of license?

Estoppel. Licensee invested substantial money or labor

108

Licenses - 2 examples

Tickets
Oral easments

109

PROFIT - define

Entitles holder to enter subservient land and take soil or substance of soil

110

Profit - same rules as:

Easements,
incl >1y SoF requirement.

111

COVENANT - define and distinguish from easement.

Contractual limitation or promise regarding land.
(Not easement, which is property right in land)

112

Negative covenants - types:

Unlimited.
(Not like 4 negative easements.)

113

Covenant - distinguish from equitable servitute

Acc to basis of remedy!
If $$ damages -->covenant
If injunctive --> equitable servitute.

114

When does covenant run with land?

When it is capable of binding successors
When both lands transferred - first analyze burden - harder test.

115

Burdened land transferred - when does covenant bind transferee?
[WITHN]

Writing (original promise, not transferee undertaking)
Intent (orig parties intended that promise would run)
Touch and concern the land: Promise affects parties legal relations as landowners, not members of community at large
Horizontal privity: succession of estate between orig. parties - grantor/grantee, landlord/tenant, mortgagor/mortgagee
Vertical privity: between A1-A2 (anything except AP)
Notice: A1 had some notice of promise

116

Most common reason to disqualify binding of transferee of burden land

No horizontal privity between original promising parties

117

Benefiting land transferred - when does covenant benefit transferee?
[WITV]

Writing. Intent. Touch and concern.
Vertical privity. (Not horizontal!) (Way easier than burdened property)

118

EQUITABLE SERVITUDES - define

Promise that equity will enforce against successors.
Accompanied by injunctive relief.

119

Creation of equitable servitude binding successors
[WITNES]

Writing
Intent (to be enforceable against assignees)
Touch and concern
Notice - to assignees of promise
(Privity not required!)

120

Implied equitable servitude - when?

Eg, sells many lots with restrictive coventants against commercial use, then sells one without. Is last one bound ("reciprocal negative servitude")?