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30 Cards in this Set

  • Front
  • Back

Types of easements

- Express


- By prescription


- By permission


- By implication


- By necessity

Conditions for express easements

1). Writing evidenced by statute of frauds


2). Permitted use including scope


3). Benefit is attached with the property


4). Provisions re: transferability and divisibility are changed


5). Locations of use


6). Includes limitations, responsibilities of burdened property and beneficiary


7). Possible provisions for termination (Times and conditions)

Permissive easements (1 of 3)

Permission (estoppel > temporary > license)



Estoppel – irrevocable license


1. Permissive use (express or implied permission)


2. Creates reasonable reliance of user (c. relationships)

Permissive easements (2 of 3)

Temporary possession (Shack)


1. Coupled with possession so > licensee rights


2. Grantor may not isolate grantees

Permissive easements (2 of 3)

License (personal privilege)


1. Presumed revocable; any breach remedied by money damages


2. Presumed non-transferable

right of first refusal

O will sell to A, and before O enters into a contract with a third party for an easement, they must get A's permission

Implied Easements

Prior Use


Necessity

Prior Use

Existed before subdivision


Known use


Use would be expected to continue

Necessity

Landlocked


strict/ obvious


voluntary?


ONLY can be from there


Notice = examination




Remedies:


Injunction


Eminent Doman

Prescription

Adverse possession plus difference for Exclusive and Hostile:




Exclusive: normal public cannot use it


Hostile:


- Lost grant - permission once given but now lost


- Acquiescence - no formal permission given for statutory period but allowance

Transfer of Easement Appurtenant

§ Presumed to run with the land§ Benefit of easement may not betransferred to land that was not originally intended to benefit from easement

Transfer of Easement In Gross

Personal use = non transferable by beneficiary (though burden runs against successive holders of burdened property)


Commercial Use = transferable by beneficiary

Devisability of Easement Appurtenant

Runs with the land -- automatic with dominant party


May not be transferred to land that was not in original benefit


Included in scope restrictions

Devisability of Easement In Gross

Transferable and exclusive, Potential limit on divisibility ·




All holders of benefit must agreeto further subdivisions Miller v. Lutheran Camp·




Tenants in common rule: Uses maybe subdivided as long as they don’t unreasonably interfere with fellow benefitholders

Remedies for Improper Use



Damages


Injunction


Termination (Rare)

Termination through writing


- Original deed provisions


- Release: Benefit holder expressly grants release


- Merger: BH buys other property


- Eminent Domain: Gov buys burdened property

Termination through Conduct

Abandonment - engages in conduct that reflects intention to permanently discontinue use of easement


Estoppel - spends money in reliance on expectation that easement will be used in the future and spends $ in reliance on that expectation (ex structure build on roadway)


Prescription- Burden H blocks Benefit H use

Transfer

Convey entire interest

Devise

Convey partial interest

Motivations for doing this

Everyone, and everything.

Stopping Hostility in Prescriptive Easements

Action to stop must be unequivocal


- Send someone notice that they no longer have right to use


- Legal act of filing action


- Calling police


- Barring/Interrupting

Conservation easement

A has right to require that B can't use easements for anything other than a nature preservation

Takings of Easements

Government must provide just compensation


Can't seize easements that appear to be abandoned

COVENANTS/EQUITABLE SERVITUDES

Promises related to land where benefitted party can exert control over the use of the burdened land


- Both benefit and burden run with land

Elemets of RC/ES to run with land

Promise must be in writing


Notice


Intent


Touch and Concern


(1) real and substantial benefit on ordinary users


(2) materially limits ordinary uses of burdened property

Commercial covenants not to compete

- Certainly imposes a burden that touches and concerns


- Restriction does not confer an actual benefit on another identified lot that would be used for prohibited use and would actually benefit from restriction on the property

Elements for if P decides to enforce Covenant at law

Horizontal privity


Vertical privity

Horizontal privity

Relationship between original promisor/promisee


- English common law: HP only if RC was made in context of LL/T relationship


- US jur: buyer/seller real is sufficient to eat HP: so long as RC is contained in the deed of sale

Vertical Privity

Relationship between current P and D and the original promisee/promisor




SAME AS SUBLEASE/ASSIGNMENT


- Burden: most jurisdictions require strict VP: Same quality of estate


- Benefit: most jurisdictions accept relaxed VP: some portion of land possessed by original promisor

omg

come on pri