Flashcards in Real property Deck (195)
5 exceptions to L tort liability
- 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
EASEMENT - Define
Grant of a non-possessory property interest
that entitles its holder to some form of use or enjoyment
of another's land
Land subject to easement is called
Most are affirmative.
Four categories of negative:
Stream water from artificial flow
How to create negative easement?
Expressly in writing signed by grantor
No natural or automatic right
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)
Transferability of easements?
Automatically upon sale of dominant estate.
Automatically upon sale of subservient estate unless buyer is BFP without notice of easement!
Only easement for commercial purpose transfers automatically.
4 ways to create affirmative easement
COAH - ‡†—„
Continuous use for given statutory period (*NY* 10y)
Open notorious use
Hostile - without servient landowner permission (if permission - no AP!)
Previous use was apparent
Parties reasonable expect that use will survive division, since reasonably necessary to dominant land's reasonable use and enjoyment.
Eg. Conveyed landlocked portion of land.
SoF: If >1 must be in writing ("Deed of Easement")
Unilateral expansion of orignal scope of easement to benefit non-dominant parcel?
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)
LICENSE - define
To enter another's land
For a specific/delineated purpose
Licenses subject to SoF?
What can bar revocation of license?
Estoppel. Licensee invested substantial money or labor
Licenses - 2 examples
PROFIT - define
Entitles holder to enter subservient land and take soil or substance of soil
Profit - same rules as:
incl >1y SoF requirement.
COVENANT - define and distinguish from easement.
Contractual limitation or promise regarding land.
(Not easement, which is property right in land)
Negative covenants - types:
(Not like 4 negative easements.)
Covenant - distinguish from equitable servitute
Acc to basis of remedy!
If $$ damages -->covenant
If injunctive --> equitable servitute.
When does covenant run with land?
When it is capable of binding successors
When both lands transferred - first analyze burden - harder test.
Burdened land transferred - when does covenant bind transferee?
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
Most common reason to disqualify binding of transferee of burden land
No horizontal privity between original promising parties
Benefiting land transferred - when does covenant benefit transferee?
Writing. Intent. Touch and concern.
Vertical privity. (Not horizontal!) (Way easier than burdened property)
EQUITABLE SERVITUDES - define
Promise that equity will enforce against successors.
Accompanied by injunctive relief.
Creation of equitable servitude binding successors
Intent (to be enforceable against assignees)
Touch and concern
Notice - to assignees of promise
(Privity not required!)