Disputes About The Use Of Land

Front 1

Easement

Back 1

An easement is the right held by one person to make specific, limited use of land owned by another.

Always consider: creation, termination, scope.

Front 2

Easement Appurtenant

Back 2

Easements are presumed to be appurtenant (tied to the land) unless there are clear facts to the contrary. The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate.

Front 3

Easement in Gross

Back 3

Easements in gross are tied to the easement holder and specifically benefit him.

Front 4

Express Easements

Back 4

An express, affirmative indication by the parties that complies with the SoF.

Front 5

Easements by Necessity

Back 5

Created where access to or from a property is impossible without the easement. Terminates automatically when the necessity ends.

Front 6

Easement by Implication

Back 6

Legally implied based on prior use by a common grantor on land subsequently divided into multiple plots.

1. existed prior to division of a single tract
2. common grantor's use is continuous and apparent
3. use is reasonably necessary for enjoyment of the dominant tenement
4. parties intended the use to continue after division of the land

Front 7

Easement by Implication: Exceptions

Back 7

Easement may be implied without prior use if:

1. lots in a subdivision are sold with reference to a map plan
2. holder of a profit a prendre has an implied easement to pass over the land's surface as reasonably necessary to extract materials.

Front 8

Easement by Prescription

Back 8

Acquirer's use of another's land must be:

1. continuous (for statutory period)
2. open and notorious
3. actual
4. hostile

*the scope of an esement by prescription is limited to the nature and extent of the adverse use.

Front 9

Easement by Estoppel

Back 9

Good-faith, reasonable, detrimental reliance on permission by a servient estate holder, may create an easement by estoppel.

Permission + Detrimental Reliance

Front 10

Negative Easement

a.k.a. "Restrictive Covenant"

Back 10

Prevents the owner from using land in a particular way.

Must be in writing signed by grantor.

Typically applies to restriction on light, air, support, or stream water from artificial flow.

Front 11

Termination of Easement:

Release

Back 11

Writing that expressly releases the easement right and complies with SoF.

Front 12

Termination of Easement:

Merger

Back 12

If the owner of the easement acquires fee title to the underlying estate the easement merges into the title.

Front 13

Termination of Easement:

Severance

Back 13

Any attempt to convey an appurtenant easement separate from the land it benefits terminates the easement.

Front 14

Termination of Easement:

Abandonment

Back 14

If the owner of the easement acts in an affirmative way that shows clear intent to relinquish the easement right it may be abandoned/terminated.

Mere statements of intent or non-use without affirmative conduct are insufficient to constitute abandonment but may constitute estoppel.

Front 15

Termination of Easement:

End of Necessity

Back 15

An easement by necessity terminates when the necessity ceases to exist.

Condemnation of the servient estate also terminates the easement.

Front 16

Termination of Easement:

Prescription

Back 16

If an easement holder fails to protect his easement against a trespasser for the statutory period, his easement right may be terminated by prescription.

Front 17

Termination of Easement:

Estoppel

Back 17

If the servient estate owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned, then the easement holder may be estopped from asserting the easement.

Front 18

Termination of Easement:

Sale to Bona Fide Purchaser

Back 18

If a written easement is granted but not recorded against the servient estate, then the easement is not enforceable against a bona fide purchaser. The easement is not actually terminated, but rather becomes unenforceable.

Front 19

What is the difference between a real covenant/equitable servitude and an easement?

Back 19

Easement - grants affirmative rights to use land

RC/ES - restrict the right to use land.

Front 20

What is the difference between a real covenant and an equitable servitude?

Back 20

RC - seeks damages

ES - seeks injunction/equitable relief

Front 21

Real Covenant Requirements

Back 21

Privity

Intent

Notice

Touch and Concern

Statute of Frauds

Front 22

Equitable Servitude Requirements

Back 22

Touch and Concern

Intent

Notice

Statute of Frauds

Front 23

Real Covenants: Horizontal Privity

Back 23

FOr the burden to run, the original parties to the covenant must have privity of estate at the time the agreement creating the covenant is entered into: some shared property interest apart from the covenant.

*not required for benefit to run

Front 24

Real Covenants: Vertical Privity

Back 24

The successor to property can be held to the covenant (burden) only if the successor holds title to the entire servient estate (fee simple) held by the promisor.

Successor may enforce the covenant (benefit) as long as the property interest possessed by the successor is at least some portion of the property interest held by the promisee.

Front 25

Real Covenants: Intent

Back 25

The parties must intend for the rights and duties to run with the land.

Front 26

Real Covenants: Notice

Back 26

Under the recording acts, a subsequent purchaser without notice of a burdening covenant is not bound by it. Such notice can be constructive or actual.

Front 27

Real Covenants: Touch and Concern

Back 27

Generally the person seeking enforcement must establish that the benefit or burden affects both the promisee and promisor as owners of land and not merely as individuals.

Front 28

Real Covenants: Statute of Frauds

Back 28

The covenant must comply with the Statute of Frauds.

*exception for implied reciprocal servitudes.

Front 29

Implied Reciprocal Servitudes

Back 29

Lot owners in residential subdivisions may enforce restrictions on the use of property against other subdivision owners if, when sales began, the developer had a general scheme for all parcels of the subdivision as evidenced by:

• recorded plat
• general pattern of restrictions
• oral representations to earlier buyers
• notice (actual, inquiry, recorded)