Real Property Flashcards
(33 cards)
Easement
An easement is a nonpossessory interest in land that gives the holder a specific, limited right to make use of that land.
Easements may be express or implied.
Express Easement
An express Easement is subject to the statue of frauds (must be in writing). It can be created by grant or reservation, e.g., when a grantor conveys land but reserves an easement right in land for the grantor’s use/benefit
Express Easements are always subject to recording statutes.
Negative Easements must be express.
Implied Easement Types
There are four types of implied easement - prescription, implication (prior use), necessity, and estoppel.
Dominant Estate
The dominant estate is the land benefited by the easement
Servient Estate
The servient estate is the land burdened by easement
Easement Appurtenant
An easement appurtenant is tied to the use of the land. It is fully transferable and goes with the land
Easement In Gross
An easement in gross benefits the holder personally. There is no dominant estate in such an easement.
While these were traditionally not transferrable, today if there is intent for it to be transferable upon creation, it will be.
Easement Types Generally
Easements may be
1) Express or Implied
2) Appurtenant or In Gross
3) Affirmative or Negative
Implied Easements generally
Implied easements arise out of factual circumstances and are not subject to the statute of frauds. They are also not subject to recording statutes UNLESS a subsequent purchaser had notice of the easement.
Easement by Necessity
An easement by necessity requires
1) the dominant estate by effectively useless, ie landlocked such that the only way to access the land is by an easement across the servient estate.
2)The dominant and servient estates must have been under common ownership at one time and
3) when the estates were severed, one property became virtually useless without the easement.
Easements by necessity end when no longer necessary
Easement by Implication
An easement by implication is created by an ongoing and existing use of the property. It requires common ownership at the time the use began, prior to the estate’s severance the owner must have created a quasi easement, after severance the quasi-easement’s use must be continuous and obvious, and it must be reasonably necessary
Easement by Prescription
An easement by prescription is akin to adverse possession.
The dominant estate holder’s use of the easement must be continuous, hostile, actual, open, and for the statutory period.
Continuous means ongoing. Actual means physical presence, open means visible and apparent, hostile means without permission and will be found when all other elements are present, and for the stautory period is self explanatory.
Easement by Estoppel
An easement by estoppel is created by a representation for permissive use, which the grantee reasonably relies upon in good faith, after which the permission is withdrawn.
If the reliance was detrimental, withdrawal is estoppel, effectively creating an easement.
Easement Scope - Express
The Scope of an Express easement is that which is written. Where those written terms are ambiguous a court will consider the intent of the og parties as to the purpose of the easement. A change in use is examined for reasonableness, as there is an assumption that the og parties contemplated the easement’s present and future use.
Easement Scope - Implied
The scope of an implied easement is determined by the nature of the prior use or necessity
Easement- Duty to maintain
While the owner of the easement typically has the duty to maintain it, parties can contract otherwise
Easement Termination
- Abandonment
- Destruction of Servient Estate
- Estoppel
- Expiration
- End of Necessity
- Merger
- Prescription
- Release
- Severance
Profit a Prendre
A Profit a Prendre is not an easement. It is a right to enter another’s land and remove a specific natural resource.
It operates similar to an easement, but cannot be created by necessity
License
A license is not an easement. A license is a revocable permission to use another’s land.
Unlike easements, licenses do not bind successors, only the holder.
Real Covenant
A real covenant is a promise concerning the use of land that runs to successors to the promise.
A real covenant must be in writing, the parties must have intended the rights and duties to run with the land (heirs, assignes, successors language), it must touch and concern the land, there must have been notice, and privity.
For the burden to run, strict vertical privity is required (which means that the successors must take the same estate as the og party), while only limited vertical privity is required for the benefit.
The remedy is damages
Equitable Servitude
An equitable servitude is a nonpossessory property right. Equitable servitudes are covenants about land use that are enforced at equity by injunction.
For a servitude to be enforced at equity, it must be in writing and meet the following requirements: (i) there must be intent for the restriction to be enforceable by and against successors in interest, (ii) the servitude must touch and concern the land, and (iii) if the person against whom the servitude is to be enforced is a purchaser, he must have notice (whether actual, record, or inquiry notice) of the servitude.
The remedy is injunctive relief
Implied Reciprocal Servitude
Type of Equitable Servitude which is 1) implied and 2) need not be in writing.
Allows owners in a subdivision to enforce restrictions on an unrestricted lot owner
Requirements:
When sales began, developer had a common scheme for subdivision; and
Owner of unrestricted lot had notice (actual, record, or inquiry) of the restriction
Differentiate Easements, Real Covenants, and Equitable Servitudes
Easements are about USE, while covenants/servitudes are about PROMISES. When in doubt on the bar, if they want money, think real covenant; if they want to stop something, think equitable servitude or easement.
Terminating a Real Covenant
1) Release
2) Merger
3) Condemnation
