Ls - Property Set 4

Front 1

What does Title Insurance Protect against?

Back 1

"Title insurance guarantees that the insurance company has searched the public records and insures against any defects in the records, unless such defects are specifically excepted from coverage. Depending on JN, a title company may or may not have a duty to perform a title search and/or search its own records."

Front 2

What things are typically excluded from title insurance?

Back 2

1) Losses from government regulations 2) Defects that would have been revealed by survey or inspection 3) unrecorded claims or easements

Front 3

What is a servitude?

Back 3

"Land use arrangements arising out of private agreements. Usually the agreements involve two or more parcels of land, and the purpose of the agreements is to increase the total value of all the parcels involved. "

Front 4

What are the five types of servitudes

Back 4

"Easements, Covenants (Real covenants & Equitable Servitudes), Profits, Licenses"

Front 5

A is given the right to enter upon B’s land

Back 5

Easement

Front 6

A is given right to enter B's land and remove something attached to the land

Back 6

Profit

Front 7

A is given right to enforce a restriction on the use of B's land

Back 7

"A's interest is a negative easement, a real covenant or an equitable servitude depending on factors such as remedy"

Front 8

A is given the right to require B to perform some act on B's land

Back 8

A's interest is a real covenant or an equitable servitude depending on remedy

Front 9

A is given right to require B to pay money for the upkeep of specified facilities.

Back 9

A's interest is a real covenant or an equitable servitude depending on remedy

Front 10

What is the difference between an easement appurtent and an easement in gross?

Back 10

"Appurtent gives the right to the owner of the land (runs with the land), Easement in Gross gives a right that is not attached to the land (goes with the person). If it is unclear it is construed as an easement appurtenant."

Front 11

What is the difference between an affirmative easement and a negative easement?

Back 11

An affirmative easement is anything that gives someone a right to use something on the land. A negative easement gives the right to prevent the owner of the land from doing something on his own land.

Front 12

What is the difference between a servient estate and a dominant estate?

Back 12

A servient estate is the estate that is burdened by the easement. A dominant estate is the estate that is benefitted by the easement.

Front 13

What are the four different ways an easement can be created?

Back 13

"Express (grant or reserve), Easement by Estoppel, Implied or Prescriptive."

Front 14

What is the difference between granting a easement and reserving one?

Back 14

A grant is the giving of an easement. The reserving occurs when you giv e an estate but retain the easement.

Front 15

Can a property owner reserve an easment for a 3rd party?

Back 15

"Under the CL rule No. Under Willard, yes they can, because it would frustrate the intent of the parties if they didn't honor the easement."

Front 16

What is a license? How can you tell the difference between a license and an easement?

Back 16

"Anything that is not a property interest in land that allows you to go on the land without trespassing. A license is revocable, but an easement is not. "

Front 17

Irrevocable License (aka easement by estoppel)

Back 17

1) A license for access purposes 2) substantial money in reliance in good faith 3) reasonable expectation that reliance will occur. Keep in mind the license only endures so long as is necessary to allow the license owner (easement owner) to recover the value of his or her investment.

Front 18

What is an easement by prescription?

Back 18

"Like adverse possession, can tack previous owners together."

Front 19

What are the two types of implied easements?

Back 19

Easement by necessity and Quasi-Easement

Front 20

Quasi-easement.

Back 20

"When the owner had it he put in the ""easement"". When he partitioned it, it remained with the other property. Was the easement there before the parcel was split?"

Front 21

Easement by Necessity

Back 21

"Four elements: 1) Former unity of ownership 2) Current necessity of the easement 3) Necessity in easement at the time the estate was severed. 4)Most JX require strict necessity some require reasonable necessity.

Front 22

Assignment of Easements

Back 22

"Appurtent easements by definition are assignable. Easements in gross depend on the intent of the parties, or their subsequent agreement."

Front 23

Divisibility of Easements

Back 23

Easement in gross is divisible when the creating instrument so indicates or the easement is exclusive (the owner has the sole right to engage in the activity that the easement permits). As long as the total burden on the servient estate does not amount to a surcharge or a misuse of the easement.

Front 24

One-Stock Rule

Back 24

"When two or more persons share the exclusive right to an easement, the multiple owners must act with one voice. Each of the multiple owners has a veto on any action taken with regard to the easement."

Front 25

Scope of Easements

Back 25

"Delinates the extent of use an easement holder may make of the servient state. Scope may include Location of the easement, intensity of use. Easement cannot benefit adjoining property. Improvement, maintenance and repair rights exist if it doesn't unreasonably burden the easement."

Front 26

Termination of Easements

Back 26

"HEAD-MEN-PEN - H-Happening of some event, E - Expressly Release the easement, A - Abandonment (non use plus something more), D - Durational, M - Merger, E - Estoppel (servient owner relies on easement owner), N - Non-use for the statutory period, P - Prescription, E - Eminent Domain, N - Necessity Ends."

Front 27

CL Categories of Negative Easements

Back 27

1) Blocking your windows 2) Interfering with airflow to your land in a defined channel 3) removing the support of your building through excavation 4) interflowing with the flow of water.

Front 28

What is the difference between a Real Covenant and an Equitable Servitude?

Back 28

Real Covenants are an action at law that provides for damage remedies. Equitable Servitues are an action in equity i.e. injunciton. Equitable servitudes are easier to satisfy and there are more defenses against enforcement.

Front 29

Real covenant - Elements for the benefit to run

Back 29

1) Writing that satisfies Sof 2) intent to bind sucessors 3) touch and concern 4) vertical privity.

Front 30

Real covenant - Elements for the burden to run

Back 30

1) Writing that satisfies Sof 2) intent to bind sucessors 3) touch and concern 4) vertical privity 5) horizontal privity between the initial parties 6) notice - constructive or actual

Front 31

Intent to bind

Back 31

"Look for magic words ""his heirs"", ""his assigns"" - that is enough to prove requisite intent absence anything to the contrary. Or ""covenant shall run with the land."""

Front 32

Touch and Concern the land

Back 32

1) Is it affirmative vs. negative? If it is negative it likely concerns and touches the land 2) Physical use?The more likely it effects the physical use of the land the more likely it t and c the land 3) Substantially effect the legal relations or value of the property? increase the value of the benefitted estate - decrease the value of the burdened estate

Front 33

Vertical Privity

Back 33

The relationship between the original party and the sucessors in interest. The benefit can run to a lesser estate. For the burden to run the sucessor in interest must have succeeded to the original promisor's ownership interest.

Front 34

Horizontal Privity

Back 34

"Three Schools of Thought Basic successive interest split -More than a mere promise. There needs to be a grantor/grantee relationship or a landlord tenant relationship to establish horizontal privity. 2) Mutual interest split - both parties have to have an interest in the burdened land. If B conveys Whiteacre to A, it isn't satisfied. If B reserves an easement, then they both have an interest in the burdened land. Landlord/tenant satisfies still because there is a reversion. Interest in the same property at the same time. 3) No horizontal privity. Written promises are okay."

Front 35

Notice

Back 35

"Three types: record, actual or inquiry."

Front 36

Equitable Servitudes - Elements for the benefit to run

Back 36

1) Writing 2) intent or common plan 3) touch and concern 4) vertical privity

Front 37

Equitable Servitudes - Elements for the burden to run

Back 37

1) Writing 2) intent or common plan 3) touch and concern 4) notice

Front 38

Common Plan

Back 38

Sanborn case - impliedly residential - no gas station.

Front 39

Scope of Covenants

Back 39

"If the language is unclear or ambiguous, the restrictive covenant will be resolved in favor of the free enjoyment of the property and against restrictions. Restrictions on the use of the land will not be read into the covenant by implication. The words of the covenant will be given their ordinary and intended meaning."

Front 40

Termination of Covenants

Back 40

"CRAMPEE: Condemnation, Release, Abandonment, Merger, Prescription, Expiration, Estoppel"