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57 Cards in this Set
- Front
- Back
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Easement
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a right of way giving individuals other than the owner permission to use a property for a specific purpose.
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Covenant
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A promise to do or not to do a certain thing with respect to land.
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Profit
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the right to take something off another's land
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License
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permission to go on land belonging to the licensor in order to engage in an activity.
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Dominant Estate
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owner of easement who has the right to go onto the land of another for a specific purpose.
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Servient Estate
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owner of land who retains title and possession subject to the limitation of right of use by another (dominant estate)
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Positive easement
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an easement entitling its holder to do something affecting the land of another in such a way that the holder would be guilty of trespass or nuisance were it not for the easement
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Negative easement
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An easement right that prohibits an owner from a use
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Easement Appurtenant
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when its filed at the courthouse, the easement is attached to the land, not the actual person.
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Easement in Gross
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An easement that attaches to a person (between two people) ex) right to put billboard on someones land.
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Express Easement
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An express easement is created by a DEED or by a will. Thus, it must be in writing. An express easement can also be created when the owner of a certain piece of property conveys the land to another but saves or reserves an easement in it. This arrangement is known as an easement by reservation.
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Easement by Necessity
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The courts will find an "easement by necessity" if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other.
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Easement by Prescription
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An easement by prescription is one that is gained under principles of adverse possession.
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Public/Private easement
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A private easement is held by private individuals or entities. A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual.
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Conservation easement
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an ecumbrance. Conservation easements must be voluntary, have tax benefits, must be in writing, run with the land
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floating easement
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A floating easement exists when there is no fixed location, route, method, or limit to the right of way.[1][2][3] For example, a right of way may cross a field, without any visible path, or allow egress through another building for fire safety purposes. A floating easement may be public or private, appurtenant or in gross.
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How to acquire an easement
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recorded document, unrecorded document, prescription and estoppel
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6 arguments to make to get an easement
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Express (grant or reservation), Implication (prior use), easement by Estoppel, Necessity, Prescription, Condemnation (eminent domain).
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legal standard for eminent domain (condemnation)
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Eminent Domain: power of the government for force a compulsory purchase. Legal Standard: property use will be devoted to public or civic use.
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Kelo Case
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economic development.
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Easements Appurtenant
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when its filed at the courthouse, the easement is attached to the land, not the actual person.
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Easement in Gross
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easement that attaches to a person (between two people) ex) right to put billboard on someones land.
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Express vs Implied
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Where there is an actual promise, either in writing or words, the contract is express. If Smith asks Jones to paint Smith's fence, but says nothing about compensation, a promise to pay the reasonable value of the work performed is implied.
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covenant
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a promise to do or not to do a certain thing relating to the use of land
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profit
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the right to take something off another's land.
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License
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permission to go on land belonging to the licensor in order to engage in an activity
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Affirmative and Negative Covenants
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Affirmative: will
Negative: will not |
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Covenants, conditions, and restrictions
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usually found in homeowner associations neighborhoods.
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Remedies for Breach
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1) Money Damages 2) An injunction or decree requiring specific performance
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Legal Requirements for covenants
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1) Writing required and cannot be implied
2) If you want the covenant to run with the land, you must specifically state this in writing. |
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2 types of profits
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Appurtenant: owned by an adjacent landowner, and tied to the use of the adjacent land
In Gross: can be assigned or otherwise transferred by its owner. |
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Creation of a Profit
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Like an easement, profits can be created expressly by an agreement between the property owner and the owner of the profit, or by prescription, where the owner of the profit has made "open and notorious" use of the land for a continuous and uninterrupted statutory period.
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4 ways a profit can be terminated
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1) merger
2) release 3) abandonment 4) misuse |
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License four rules
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1) revocable or irrevocable privilege
2) Terminable at the will of the grantor if revocable 3) Sounds in contract 4) Is personal to the holder and is not alienable |
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Lateral and Subjacent support
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Lateral: support that land receives from the adjacent land
Subjacent: support that land receives from underlying strata |
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Strict Liability
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responsible if you conduct an ultrahazardous activity
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Negligence
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Carelessness
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Is it a defense to strict liability that you were careful?
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It is not a defense that you were careful.
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Rule on waivers:
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they must be knowing and intelligent and in writing
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Nuisance
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unprivileged interference with use and enjoyment of land.
Remedies available: injunction and/or money damages. |
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Navigational Servitude's
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Old rule: surface owner has a right to exclusive possession of the heavens.
New rule: use of airspace is determined by FAA regulation. If present or potential use of the surface is impaired can file intrusion. |
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Gov Plane=
Private Plane= |
Gov: eminent domain
Private: injunction |
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US vs Causby
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Partial Taking (kept land, but got depreciation money)
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Solar Enjoyment
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you have a right to the enjoyment of the light coming onto your property.
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legal standard for nuisance
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enjoyment
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Role on waivers
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must be knowing and intelligent and in writing.
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Lawsuit for interference with solar enjoyment: courts economic analysis
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courts are more likely to protect solar collectors than swimming pools or gardens.
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2 approaches to noise pollution
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1) Violation of noise ordinances (issued by states/municipalities)
2) Nuisance action |
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GAAMP
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Some right to farm laws require the use of generally accepted agricultural management practices (GAAMPs) in order to be protected from nuisance litigation.
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Protected Right-to-farm law Activities
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1) odor from livestock
2) manure 3) fertilizer 4) feed 5) noise from livestock 6) dust created during plowing 7) use of chemicals 8) animal feedlots |
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Navigable waters
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A body of water, such as a river, canal or lake, is navigable if it is deep, wide and slow enough for a vessel to pass.
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What did Rapanos do
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narrowed definition of navigable
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Difused Surface Water
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Water that is on the surface of land because of rain, melting snow or floods.
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Common Enemy Doctrine
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since surface water is a "common enemy" to landowners, each landowner has the right to alter the drainage pattern of his land as long as it runs back to its original spot.
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Riparian Water Rights
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system for allocating water among those who possess land about its source
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Use of Riparian Water on Non Riparian Land
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1) requirement of attachment
2) right runs with the land 3) reasonable use doctrine and natural flow theories come into play 4)once you determine you are a riparian state, you must then consider these two theories. |
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Riparian rights run with the land
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