Property 2Nd Semester (Sjcl) (Baz)

Front 1

Why is Nuisance so important?

Back 1

It is a cause of action that is used to exonerate your rights anytime you have the right to use or enjoy property.

Front 2

Can licensees bring a nuisance cause of action?

Back 2

no, but employees could because they use the property

Front 3

Can a nuisance cause of action be brought regarding easements?

Back 3

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.

Front 4

What is the purpose of tresspass?

Back 4

It exonerates the right to possession of the property. You must have a possessory interest in the property.

Front 5

In order to succeed in private nuisance, what do you have to show?

Back 5

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.

Front 6

Involving nuisance cause of action, will a court review the neighborhood of the proposed activity? How about health problems?

Back 6

yes on both

Front 7

In some jurisdictions,is coming to the nuisance a complete affirmative defense?
What about the modern view?

Back 7

yes. However modernly, it is just one factor to consider under the reasonableness analysis.

Front 8

What are the remedies available for nuisance?

Back 8

1. money damages and/or
2. injunction

Front 9

Where you have a choice for nuisance or tresspass, which do you choose?

Back 9

Tresspass. From the plaintiffs point of view, it is a superior cause of action.
Why?
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.

Front 10

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?

Back 10

yes, it is also the law in California.

Front 11

Can it happen that an occurance can be both a private and public nuisance?

Back 11

yes

Front 12

Where does the concept of Public Nuisance arise from?

Back 12

From the criminal law.

Front 13

what is a public nuisance?

Back 13

Anything that harms the public's health, safety, morals, or general welfare.

Front 14

If a public entity brings a public nuisance cause of action, what must they show?

Back 14

1. They have to show that the conduct of the defendant affects the health, safety, and general welfare.

Front 15

What are the remedies available to a public entity proving a public nuisance?

Back 15

Abatement (injunction)

Front 16

May a private party bring a public nuisance cause of action?

Back 16

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.

Front 17

Where a private party brings a npublic nuisance cause of action, what are their potential remedies?

Back 17

1. they can get abatement or an injunction.
2. And some jurisdictions (including Ca) you can get money damages.

Front 18

Can a public entity sueing for a public nuisance receive money damages?

Back 18

no

Front 19

Can a public entity bring a private cause of action in nuisance?

Back 19

yes, when it affects them as the sole property owner (remember sally's city hall example)

Front 20

Is there a statute of limitations regarding a public nuisance?

Back 20

no

Front 21

Regarding the statute limitations for private actions, what must the plaintiff figure out first?

Back 21

Whether the nuisance is permanent or contininug.

Front 22

What is a permanent (private) nuisance?

Back 22

one which is essentially unbatable. (it cant be stopped) Classic example would be some type of permanent structure.

Front 23

WHat is a continuing nuisance?

Back 23

(private nuisance) one that is amendable to abatement. (it can be stopped)Normally it is recreated by the conduct (example the concrete factory)

Front 24

Who has the burden of proof regarding proving the case involves a permanent or continuing nuisance?

Back 24

The plaintiff.

Front 25

What are some examples of a per se nuisance?

Back 25

1. mortuary
2. cemetary
3. gas station

(its a very small category)

Front 26

What is an easement?

Back 26

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.

Front 27

Is an easement an estate?

Back 27

no, but it can exist on land no matter how the owner holds title.

Front 28

what is an appurtenant easement?

Back 28

when the benefit goes with a piece of land. Successors are not a burden when you are dealing with an appurtenant easement.

Front 29

will an easement be either appurtenant or in gross?

Back 29

yes, you must know the difference and know how to identify.

Front 30

What is an in gross easement?

Back 30

an easement is in gross it it benefits a particular person individually (telephone lines)

Front 31

What is an affirmative easement?

Back 31

generally gives the holder the right to go upon the servient tenement and do something

Front 32

What is a negative easement?

Back 32

limites the ability of the owner to use the property as he otherwise might

Front 33

What is a general easement?

Back 33

does not specify exactly where the rights may be exercised on the servient land.

Front 34

What is a specific easement?

Back 34

A specific easement gives the easement owner rights to use only a particular or specific place on the land.

Front 35

What is an exclusive easement?

Back 35

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.

Front 36

What are the three ways to create an easement?

Back 36

1. expressly
2. impliedly
3. by prescription

Front 37

Define express creation of an easement

Back 37

the creation of an easement by grant

Front 38

define implied creation of an easement

Back 38

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

Front 39

are easements subject to the statute of frauds?

Back 39

yes because its considered an interest in land

Front 40

Define easement by prescription

Back 40

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.

Front 41

What is a reservation pursuant to an easement?

Back 41

a person with property transfers all of his interest in land, but reserves an easement for himself.

Front 42

what is an implied in fact easement?

Back 42

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.

Front 43

what are the three elements of a quasi-easement?

Back 43

1. common ownership
2. prior use
3. reasonable necessity

Front 44

what is an implied in law easement?

Back 44

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.

Front 45

what is an easement by prescription?

Back 45

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)

Front 46

What are the two underlying theories regarding easements by prescription?

Back 46

1. Lost grant theory
2. "adverse possession theory" but you do not get possession.

Front 47

In regards to successors, and the easement is appurtenant, does the benefit/burden naturally transfer to the new owner?

Back 47

yes

Front 48

what are the thirten ways to terminate an easement?

Back 48

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

Front 49

what are the three different types of notice under a bona fide purchaser?

Back 49

1. constructive
2. inquiry notice
3. actual

Front 50

what is an covenant?

Back 50

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)

Front 51

Can a covenant be unilateral or mutual/reciprocal?

Back 51

both

Front 52

what are the elements of a running covenant analysis?

Back 52

1. properly executed
2. privity
3. intent
4. notice
5. touch n concern the land
6. public policy

Front 53

what are the three three different types of privity to discuss under a running covenant analysis?

Back 53

1. vertical (show this on sallys exam)
2. horizontal (show this on sally's exam)
3. substituted
4. tenurial (landlord tenant)

Front 54

what are the 12 ways you can terminate a covenant?

Back 54

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
11.

Front 55

what are the three special termination procedures regarding covenants?

Back 55

1. frustration of purpose
2. impossibility
3. changed circumstances

Front 56

what is a unilateral promise?

Back 56

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.

Front 57

what is the holding in anderson?

Back 57

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.

Front 58

what is a covenant?

Back 58

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.

Front 59

What is the principal distinction between an easement and a profit?

Back 59

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.

Front 60

what is an appurtenant easement?

Back 60

one which is attachd to a piece of land and the benefit runs to thw owner of such land.

Front 61

what is your barf in an analysis of an appurtenant easement?

Back 61

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.

Front 62

what is your barf or an easement in gross?

Back 62

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.

Front 63

what are the characteristics of an easement in gross?

Back 63

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.

Front 64

True or false: An easement is not an estate; for it is not a prossessory interest and will never ripen into a possessory interest.

Back 64

true

Front 65

what are the two different classfication of easements?

Back 65

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.

Front 66

True or False: Courts prefer an easement appurtenant construction over that of an easement in gross?

Back 66

True

Front 67

True or False: Easements (or profits) are generally alienable either by deed or by will and are descendible?

Back 67

true

Front 68

What is the analysis we use to see if an easement is apportionable?

Back 68

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.

Front 69

True or False: An easement (or profit) is an interest in land requiring compliance with the Statute of frauds?

Back 69

true

Front 70

What are the manners in which easements (or profits) can be created?

Back 70

1. Prescription
2. Express provision in a deed or will
3. implication
4. estoppel
5. eminent domain

Front 71

What is an easement by prescription?

Back 71

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.

Front 72

what analysis we use to evaluate an easement by prescription?

Back 72

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

Front 73

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?

Back 73

true

Front 74

True or false? Tacking of successive periods of adverse use to satisfy the time period is permissible in prescription cases?

Back 74

True

Front 75

To establish an easement by implication what must be shown?

Back 75

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.

Front 76

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?

Back 76

True

Front 77

What is an easement by necessity?

Back 77

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.

Front 78

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.

Back 78

true

Front 79

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?

Back 79

true

Front 80

What are the 5 ways that an easement or profit can be extinguished?

Back 80

1. merger
2. abandonment (non use not sufficient)
3. release (written)
4. destruction of servient tenement
5. condemnation

Front 81

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.

Back 81

true

Front 82

What is a license?

Back 82

permission to enter anothers property without being a trespasser

Front 83

What are the two manners in which a license can be created?

Back 83

it can be created by a express or an implied agreement.

Front 84

How do we distinguish a license from an easement?

Back 84

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.

Front 85

How do we distinguish a license from a contract?

Back 85

A contract is always based on a consideration. There may or may not be consideration for a license.

Front 86

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?

Back 86

true

Front 87

Are licenses transferrable?

Back 87

No, a mere license is generally personal and not assignable but such a license is assignable if the licensor so intends.

Front 88

What happens if one owns personal property on the land of another with a privilege incidental to such personal property?

Back 88

Such a privilege is a license coupled with an interest and is assignable with the transfer of the personal property.