Servitudes and Ownership in Common

Question 1

*Types of notice

Answer 1

1. Actual notice: if actually told about it / was otherwise made aware of it
2. Inquiry notice: the condition of premises would make a reasonable purchaser inquire about the existence of a covenant/servitude
3. Constructive notice: the restriction was recorded within the registry of deeds and could be found via a reasonable search of the records prior to sale

Question 2

Pros of Servitudes

Answer 2

1. Could increase transfer of land where buyer would only buy w/ a promise
2. Assurance of promise could increase value of land
3. Could make people feel more secure
4. Can favor autonomy (A and B have the freedom to make an agreement)

Question 3

Cons of Servitudes

Answer 3

1. Can decrease the transferability of land where the promise is idiosyncratic
2. Could make people feel less secure (unfair surprise)
3. Can cut against autonomy where a new buyer is burdened by an old promise

Question 4

Servitudes mediate pro/con tensions by

Answer 4

1. Setting out procedural rules (Parties are bound when people knew or should have known)
2. Set out rules of interpretation that favor agreements that maximize social utility & what most people would want (presumption must be clearly rebutted if servitude contradicts this)
3. Making certain things out of bounds (like racial servitudes)

Question 5

Appurtenant

Answer 5

benefit of servitude is held by a particular individual / entity rather than running w/ parcel of land

No dominant estate; only a servient estate

Question 6

In gross

Answer 6

the beneficiary is a land owner

Question 7

*Express easements run with the land if

Answer 7

1. It is in writing (statute of frauds);
2. The grantor intended for the easement to run to her successors; and
3. The grantor’s successors are on notice of the burden

Question 8

Formal creation

Answer 8

by deed

Question 9

*Informal creation

Answer 9

1. Prescription
2. Custom
3. Public trust doctrine
4. Estoppel
5. Prior apparent use
6. Necessity

Question 10

*Custom

Answer 10

longstanding, uninterrupted, peaceful, reasonable, uniform use

Question 11

*Estoppel (the owner is estopped from revoking the license)

Answer 11

Affirmative use of property belonging to another that is:

1. W/ permission from the owner
2. Foreseeable that user would reasonably rely on continuation of that permission
3. User changed her position (often via investments or significant expenditures) in reliance on continuation
4. Necessary to prevent injustice

Question 12

*Prior apparent use:

Answer 12

1. 2 parcels previously owned by a common grantor are subdivided
2. 1 parcel was previously used for the benefit of the other in an apparent & continuous manner
3. Use is “reasonably necessary” or “convenient” for enjoyment of dominant estate (aka. there is some serious inconvenience or expense incurred by using a different method)

Note: it is not strictly necessary
Majority rule: grantor must show a higher degree of necessity than a grantee (Granite)

Question 13

*Necessity

Answer 13

1. 1 parcel owned by a grantor is subdivided
2. Upon subdivision, the dominant estate became landlocked (there is not access to a public roadway)

Majority rule:
There must be a strict necessity; AND
Affording access must effectuate the intent of the parties

Minority rule:
There must be a strict necessity; AND
Does not care about intent of the parties

Question 14

Ways an easement can be terminated

Answer 14

1. Agreement
2. By their own terms
3. Merger
4. Abandonment
5. Adverse possession
6. Frustration of purpose

Question 15

Covenants

Answer 15

Allows one to compel another to (a) refrain from doing something on her own land, or (b) do something on her own land

Question 16

Real covenants

Answer 16

enforceable via $ damages

Question 17

Equitable servitudes

Answer 17

enforceable by injunction

Question 18

*Considerations in identifying real covenants and equitable servitudes:

Answer 18

1. Needs writing
2. Intent
   -Grantor must intend the benefits & burdens run w/ the land
   -Where writing is silent → presumption that it runs
3. Notice
   a. Equitable servitude: notice required
   - Actual, Inquiry, or Constructive notice

b. Real covenant:
-Horizontal privity
(1) Promise made in the course of a land transfer (sale, lease)
(2) Promise built in the purchase price
(3) Can only arise when only one person sells part of their land to another
- Vertical privity
(1) Formal transfer of land (a deed, left in a will)
(2) Strict: requires a complete transfer of land
(3) Relaxed: allows partial transfer

4. Touch & concern the land (fading in influence)
   - It has some effect on the use or value of the land

Question 19

Different jurisdictional approaches to Covenants in Multiple-Owner Developments

Answer 19

1. Flat File: reject if no flat file–they must file & put in chain of title all lots
2. Common scheme: if common scheme (by the original subdivider) court may enforce covenants even against a property that doesn’t have covenant written in deed

Question 20

*Joint Tenancy

Answer 20

• Held by two or more persons who each have an undivided equal share (conveyance)
• Traditionally created by conveyance or devise “to A & B as joint tenants with right of survivorship” (or substantially similar language)

Question 21

*Joint Tenancy four “unities”

Answer 21

1. Unity of Time
   Interest created at the same moment
2. Unity of Title
   Must be acquired by the same instrument
3. Unity of Interest
   Same fractional share (50/50 or 33/33/33)
4. Unity of Possession
   An undivided right to possess

Question 22

*JT Right of survivorship

Answer 22

• One person dies → other person gets all their shares
• Cannot pass property by a will or via intestacy

Question 23

Ending the joint tenancy: Must do something so 4 unities no longer in place

Answer 23

Conveys interest during their lifetime (inter vivos) (bc no unity of time)
- Become tenants in common

Partition

Death of second to last joint tenant

If JT is >2, when one JT conveys interest to another, severance occurs only btwn the selling owner & remaining owners

Unilateral lease does not result in the severance in a JT but lease doesn’t survive the death of the lessor (Tenhet v. Boswell)

Question 24

*Tenancy in Common

Answer 24

2 or more persons hold an undivided fractional share in property (shares may be unequal)

Requires “one” unity
Only unity of possession: An undivided right to possess

Question 25

Creating TIC

Answer 25

Severance of JT Inter vivos conveyance Devise Intestate succession Divorce Sales & gifts

Question 26

*Managing the property TIC

Answer 26

Each may use entire property, subject only to use rights of other co-tenants to the same (co-owner does not have more rights if they own a bigger share) % ownership in the property matters when T’s are splitting rent profits 1 TIC can unilaterally bind the estate by leasing to a 3rd party w/o co tenant’s knowledge and approval (Carr v. Decking) – but this differs based on jurisdiction

Question 27

Ending TIC

Answer 27

Partition There is no right of survivorship Separate shares can be devised & passed via intestacy

Question 28

Tenancy by the Entirety

Answer 28

Requires the four unities of the joint tenancy plus marriage Only severed upon divorce, death, or agreement of the parties Cannot unilaterally sever

Question 29

*Only one occupier

Answer 29

Usually, occupier doesn’t have to pay the non occupier rent bc they have a unity of possession But if ouster, occupier has to pay non occupier rent --Ouster: there needs to be an affirmative act to exclude one of the owners from the property If rental value > expenses, occupier must pay all expenses BUT if rental value < expenses, occupier can sue non occupier for the difference multiplied by the non occupier’s % of ownership in the property

Question 30

Improvement / maintenance

Answer 30

When the tenant invests in an improvement on her own (not necessary), she is not entitled to contribution. But she gets any enhanced value resulting from that improvement when sold.

Question 31

*Partition

Answer 31

Allows 1 owner to unilaterally change the state from co-ownership to not Partition in kind: physically separating the property into smaller segments & distributing them Partition by sale: property is sold on the open market or at auction, & proceeds are distributed among the owners *Presumption is partition in kind, but most courts partition in sale bc partition in kind is impractical.