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88 Cards in this Set

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  • Back
Why is Nuisance so important?
It is a cause of action that is used to exonerate your rights anytime you have the right to use or enjoy property.
Can licensees bring a nuisance cause of action?
no, but employees could because they use the property
Can a nuisance cause of action be brought regarding easements?
yes, because the person has a possessary interest in that land. If anything occurs that interfers with that right, you would bring a nuisance cause of action.
What is the purpose of tresspass?
It exonerates the right to possession of the property. You must have a possessory interest in the property.
In order to succeed in private nuisance, what do you have to show?
1. there was a substantial interference with plaintiffs use and enjoyment caused by defendants unreasonable conduct.
2. you must weigh the harm against the benefit of defendants conduct.(The reasonablity of the conduct)
Note: The key issues is that the plaintiff must prove that the harm was SUBSTANTIAL.
Involving nuisance cause of action, will a court review the neighborhood of the proposed activity? How about health problems?
yes on both
In some jurisdictions,is coming to the nuisance a complete affirmative defense?
What about the modern view?
yes. However modernly, it is just one factor to consider under the reasonableness analysis.
What are the remedies available for nuisance?
1. money damages and/or
2. injunction
Where you have a choice for nuisance or tresspass, which do you choose?
Tresspass. From the plaintiffs point of view, it is a superior cause of action.
1. Plaintiff does not have to show harm if they can prove physical invasion.
2. normally, the court will not balance to give the injunction.
3. For money damages, you can recover from all harm due to the trespass. Under nuisance the damages you can get are only under foreseeable harm.
In some jurisdictions can a person bring a cause of action against a former owner of the property for actions taken that subsequently affect the complaining party?
yes, it is also the law in California.
Can it happen that an occurance can be both a private and public nuisance?
Where does the concept of Public Nuisance arise from?
From the criminal law.
what is a public nuisance?
Anything that harms the public's health, safety, morals, or general welfare.
If a public entity brings a public nuisance cause of action, what must they show?
1. They have to show that the conduct of the defendant affects the health, safety, and general welfare.
What are the remedies available to a public entity proving a public nuisance?
Abatement (injunction)
May a private party bring a public nuisance cause of action?
yes, under certain circumstances.
1. Private party will have to prove that their injury is different in kind not just degree, of the public's interest.
2. Size is an issue. There needs to be lots of people affected.
3. It must be different in kind from other members of the public.
Where a private party brings a npublic nuisance cause of action, what are their potential remedies?
1. they can get abatement or an injunction.
2. And some jurisdictions (including Ca) you can get money damages.
Can a public entity sueing for a public nuisance receive money damages?
Can a public entity bring a private cause of action in nuisance?
yes, when it affects them as the sole property owner (remember sally's city hall example)
Is there a statute of limitations regarding a public nuisance?
Regarding the statute limitations for private actions, what must the plaintiff figure out first?
Whether the nuisance is permanent or contininug.
What is a permanent (private) nuisance?
one which is essentially unbatable. (it cant be stopped) Classic example would be some type of permanent structure.
WHat is a continuing nuisance?
(private nuisance) one that is amendable to abatement. (it can be stopped)Normally it is recreated by the conduct (example the concrete factory)
Who has the burden of proof regarding proving the case involves a permanent or continuing nuisance?
The plaintiff.
What are some examples of a per se nuisance?
1. mortuary
2. cemetary
3. gas station

(its a very small category)
What is an easement?
small, non-possessory interest in the land of another, which allows the holder to use another person's property or to limit the owners ability to use his property.
Is an easement an estate?
no, but it can exist on land no matter how the owner holds title.
what is an appurtenant easement?
when the benefit goes with a piece of land. Successors are not a burden when you are dealing with an appurtenant easement.
will an easement be either appurtenant or in gross?
yes, you must know the difference and know how to identify.
What is an in gross easement?
an easement is in gross it it benefits a particular person individually (telephone lines)
What is an affirmative easement?
generally gives the holder the right to go upon the servient tenement and do something
What is a negative easement?
limites the ability of the owner to use the property as he otherwise might
What is a general easement?
does not specify exactly where the rights may be exercised on the servient land.
What is a specific easement?
A specific easement gives the easement owner rights to use only a particular or specific place on the land.
What is an exclusive easement?
prohibits any similar easement from existing concurrently, even the owner. Extremely rate, most typically seen for a commercial purpose. It has to be in writing to be exclusive.
What are the three ways to create an easement?
1. expressly
2. impliedly
3. by prescription
Define express creation of an easement
the creation of an easement by grant
define implied creation of an easement
The common denominator is that they must be based on necessity. The three grades that we have are as follows"
1. Strict necessity
2. absolute necessity
3. reasonable necessity
are easements subject to the statute of frauds?
yes because its considered an interest in land
Define easement by prescription
the ability to gain the right to use someon else's property over a period of time. It is the running of the statute of limitations, just like adverse possession.
What is a reservation pursuant to an easement?
a person with property transfers all of his interest in land, but reserves an easement for himself.
what is an implied in fact easement?
when the surrounding facts are as such that the parties must have intended that an easement be included in the conveyance, then the easement mustbe implied in fact.
what are the three elements of a quasi-easement?
1. common ownership
2. prior use
3. reasonable necessity
what is an implied in law easement?
All you need to know is absolute necessity. No other alternative. Requires the person who takes the easement pay the fair market value at time they take the easement.
what is an easement by prescription?
The ability to gain the right to use someone else's property over a period of time. It is the running of the statute of limitations, just like adverse possession. (HACO Analysis)
What are the two underlying theories regarding easements by prescription?
1. Lost grant theory
2. "adverse possession theory" but you do not get possession.
In regards to successors, and the easement is appurtenant, does the benefit/burden naturally transfer to the new owner?
what are the thirten ways to terminate an easement?
1. natural end
2. merger
3. release (contract not to exercise.
4. abandonment
5. adverse possession/prescription
6. missuse
7. new title
8. estoppel
9. purchaser for value w/o notice
10. Severance (app)
11. transfer (in gross)
12. Death (in gross)
13. Destruction
what are the three different types of notice under a bona fide purchaser?
1. constructive
2. inquiry notice
3. actual
what is an covenant?
an enforceable "promise" which is not itself an interest in land, which maybe enforced against sucessors to the original parties. (its enforceable just like contracts)
Can a covenant be unilateral or mutual/reciprocal?
what are the elements of a running covenant analysis?
1. properly executed
2. privity
3. intent
4. notice
5. touch n concern the land
6. public policy
what are the three three different types of privity to discuss under a running covenant analysis?
1. vertical (show this on sallys exam)
2. horizontal (show this on sally's exam)
3. substituted
4. tenurial (landlord tenant)
what are the 12 ways you can terminate a covenant?
1. natural end
2. merger
3. release and abandonment
4. frustration of purpose
5. impossibility
6. changed circumstances
7. new title
8. bona fide purchase for value
9. death
10. legislation
what are the three special termination procedures regarding covenants?
1. frustration of purpose
2. impossibility
3. changed circumstances
what is a unilateral promise?
one-way promise. Promise by grantee to limite use of property to grantor's benefit. The benefit only goes to the other lots that the grantor owns at that time.
what is the holding in anderson?
If restrictions are recorded before the first parcel is sold thelater purchaser is deemed to agree to them. Therefore it is presumed the intent of the parties is to be bound even through no writing (deed) demonstrates express intent.
what is a covenant?
an enforceable promise, which is not itself an interest in land, which may be enforced against successors to the original parties. Enforceable just like contracts.
What is the principal distinction between an easement and a profit?
an easement gives its owner only the right to use the land of another with no right to take anything from such land, while a profit gives its owner the right to take either the soil itself, or a product of the land. In addition, the owner of a profit may use the land to the extend necessary to enable her to enjoy the profit.
what is an appurtenant easement?
one which is attachd to a piece of land and the benefit runs to thw owner of such land.
what is your barf in an analysis of an appurtenant easement?
Every appurtenant requires two pieces of land which are owned by two different persons. The dominate estate, which is the land whose owner benefits from the easement, and the Servient estate which is the land whose owner is burden by the easement. The owner of the dominant estate is called the dominant tenant, while the owner of the servient estate is called the servient tenant.
what is your barf or an easement in gross?
it exists when in its creation it is not intended t benefit the owner or possessor of land as such, but is intended to exist without a dominant estate.
what are the characteristics of an easement in gross?
every easement in gross requires one piec of land which is owned by a person other than the owner of the easement in gross. Only one piece of land is involved.
True or false: An easement is not an estate; for it is not a prossessory interest and will never ripen into a possessory interest.
what are the two different classfication of easements?
Afirmative- these entitle the easement owner to do affirmative acts on the land in the possession of another.

Negative- these take from the owner of the servient estate the right to do some thing which, were it not for the easement, she would have a right to do on her own land.
True or False: Courts prefer an easement appurtenant construction over that of an easement in gross?
True or False: Easements (or profits) are generally alienable either by deed or by will and are descendible?
What is the analysis we use to see if an easement is apportionable?
1. The apportionment must be measurable
2. No surcharge or extra burden will be placed on the servient tract
3. must be consistent with the intent of the parties to the original conveyance.
True or False: An easement (or profit) is an interest in land requiring compliance with the Statute of frauds?
What are the manners in which easements (or profits) can be created?
1. Prescription
2. Express provision in a deed or will
3. implication
4. estoppel
5. eminent domain
What is an easement by prescription?
It arises by adverse use of the servient estate by the dominant tenant for the period of the statute of limitation used for adverse possession.
what analysis we use to evaluate an easement by prescription?
1. Adverse as distinct from permissive: in derogation of right rather than in subordination to the rights of the landowners
2. open and notorious
3. continuous and w/o interruption
4. for the period of the prescription
True or false: Disabilities may extend the period of time for the acquisition of prescriptive easements, in much the same way as they apply to adverse possession?
True or false? Tacking of successive periods of adverse use to satisfy the time period is permissible in prescription cases?
To establish an easement by implication what must be shown?
1. that the use is apparent
2. that the use is continuous
3. that the use is reasonably necessary to the enjoyment of the quasi-dominant tract.
True or false? Since an implied easement is created by law, and is not express in the conveyance of land, all the curcumstances surrounding the conveyance are important and provable by parol evidence if necessary?
What is an easement by necessity?
It arises when property becomes landlocked by virtue of a conveyance. In that case the landowner who can show strict necessity is entitled to a right of way accross the severing line that made the property landlocked.
True or false: the extent of the rights under an easement created by deed or will is determined by the words of the instrument which describe the easement.
True or false: Easements can be taken or extinguished by the sovereighn under its eminent domain power. However, an easement is an interest in land, or property for which the sovereign will have to pay just compensation?
What are the 5 ways that an easement or profit can be extinguished?
1. merger
2. abandonment (non use not sufficient)
3. release (written)
4. destruction of servient tenement
5. condemnation
True or False? Under the recording acts, if an easement (or profit0 is Created by grant, the deed is not recorded, and the servient estate is conveyed to a bona fide purchaser for value without notice, the easement is extinguished.
What is a license?
permission to enter anothers property without being a trespasser
What are the two manners in which a license can be created?
it can be created by a express or an implied agreement.
How do we distinguish a license from an easement?
an easement is a substantial incorporeal interest in the land of another and is created by fa deed of conveyance, which must comply with the statute of frauds, or by a validly executed will.

A mere license is no such interest in land and requies no formalities for its creation. However note that there are fact situations in which a license and an easement are not all that different.
How do we distinguish a license from a contract?
A contract is always based on a consideration. There may or may not be consideration for a license.
True or False: An attempt to create an easement or profit which fails because the deed of conveyance is defective will result in a license?
Are licenses transferrable?
No, a mere license is generally personal and not assignable but such a license is assignable if the licensor so intends.
What happens if one owns personal property on the land of another with a privilege incidental to such personal property?
Such a privilege is a license coupled with an interest and is assignable with the transfer of the personal property.