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87 Cards in this Set

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EASEMENT
THE RIGHT OF ONE PERSON TO ENTER LAND IN POSSESSION OF ANOTHER FOR A DEFINED PURPOSE
PROFIT
ONE PERSON'S RIGHT TO ENTER LAND POSSESSED BY ANOTHER AND TAKE FROM IT EITHER SOME PART OF THE LAND ITSELF OR SOME PRODUCT OF THE LAND
EASEMENT APPURTENANT
AN EM IS APPURTENANT WHEN IT IS ATTACHED TO A PIECE OF LAND AND BENEFITS RUN TO THE OWNER OF THE LAND
HOW MANY PIECES OF LAND ARE REQUIRED FOR AN EM APPURTENANT?
2: THE DOMINANT ESTATE AND THE SERVIENT ESTATE
DOMINANT ESTATE
THE LAND WHOSE OWNER IS BENEFITED BY THE EM IN AN EM APPURTENANT
SERVIENT ESTATE
THE LAND WHOSE OWNER IS BURDENED BY THE EM IN AN EM APPURTENANT
ONE ORDINARILY EXPECTS AN EM TO _____ THE MARKET VALUE OF THE DOMINANT TRACT, AND _____ THE MARKET VALUE OF THE SERVIENT TRACT
INCREASE, DECREASE
EASEMENT IN GROSS
EM IN GROSS ATTACHES TO A PERSON AND REQUIRES ONLY ONE PIECE OF LAND WHICH IS OWNED BY A PERSON OTHER THAN THE OWNER OF THE EM IN GROSS
HOW MANY PIECES OF LAND ARE REQUIRED FOR AN EASEMENT IN GROSS?
ONLY ONE--THE SERVIENT ESTATE
WHAT IS THE OWNER OF THE EM IN GROSS CALLED?
THE DOMINANT TENANT
AN EM IS REAL PROPERTY IF ITS PERIOD OF DURATION IS:
FOR AN INDEFINITE TIME OR FOR THE LIFE OF A HUMAN BEING
AN EM IS PERSONAL PROPERTY IF ITS PERIOD OF DURATION IS:
FOR A SPECIFIC TIME, SUCH AS AN EM ATTACHED TO A LEASEHOLD, OR FROM PERIOD TO PERIOD LIKE A LEASEHOLD
IS AN EM AN ESTATE?
NO, BECAUSE IT IS NOT A POSSESSORY INTEREST AND WILL NEVER BECOME ONE
AFFIRMATIVE EASEMENT
ENTITLE THE EM OWNER TO DO AFFIRMATIVE ACTS ON THE LAND IN THE POSSESSION OF ANOTHER
NEGATIVE EASEMENT
TAKE FROM THE OWNER OF THE SERVIENT ESTATE THE RIGHT TO DO SOME THINGS, WHICH, WERE IT NOT FOR THE EM, SHE WOULD HAVE THE RIGHT TO DO ON HER OWN LAND
DOES A NEGATIVE EM PERMIT THE DOMINANT TENANT TO DO ANY AFFIRMATIVE ACT ON THE SERVIENT ESTATE?
NO
DO CTS PREFER THE EM APPURTENANT OR THE EM IN GROSS?
EM APPURTENANT
ARE EM'S ALIENABLE?
YES
ARE EM'S DESCENDIBLE?
YES
MUST AN EM COMPLY WITH THE STATUTE OF FRAUDS?
YES
WHAT ARE THE 5 WAYS AN EM CAN BE CREATED?
1. PRESCRIPTION
2. EXPRESS PROVISION
3. IMPLICATION
4. ESTOPPEL
5. EMINENT DOMAIN
HOW IS AN EM CREATED BY PRESCRIPTION?
ARISES BY ADVERSE USE OF THE SERVIENT ESTATE BY THE OWNER OF THE DOMINANT TENANT FOR THE PERIOD OF THE SOL FOR ADVERSE POSSESSION
WHAT REQ'S MUST BE MET FOR AN EM TO BE CREATED BY PRESCRIPTION?
ADVERSE AS DISTINCT FROM PERMISSIVE; OPEN AND NOTORIOUS; CONTINUOUS AND WITHOUT INTERRUPTION; FOR THE PERIOD OF PRESCRIPTION
HOW IS AN EM CREATED BY IMPLICATION?
1. AT THE TIME OF THE CONVEYANCE ONE PART OF THE LAND IS BEIG USED FOR THE BENEFIT OF THE OTHER PART (QUASI-EM);
2. THE USE IS APPARENT;
3. THE USE IS CONTINUOUS;
4. THE USE IS REASONABLY NECESSARY TO THE ENJOYMENT OF THE QUASI-DOMINANT TRACT
IMPLIED GRANT
IMPLIED EM IS IN FAVOR OF THE CONVEYEE AND IS APPURTENANT TO THE TRACT CONVEYED
IMPLIED RESERVATION
IMPLIED EM IS IN FAVOR OF THE CONVEYOR AND IS APPURTENANT TO THE TRACT RETAINED
HOW IS AN EM CREATED BY NECESSITY?
ARISES WHEN PROPERTY BECOMES LANDLOCKED BY VIRTUE OF A CONVEYANCE
HOW IS AN EM CREATED BY GRANT?
ARISES WHEN THE DEED IS DELIVERED; EM CREATED BY WILL ARISES AT THE DEATH OF THE TESTATOR
HOW IS AN EM CREATED BY EXPRESS GRANT?
IF THE EM IS IN FAVOR OF THE TRANSFEREE OR GRANTEE
HOW IS AN EM CREATED BY EXCEPTION OR RESERVATION?
IF THE EM IS IN FAVOR OF THE GRANTOR
HOW IS AN EM TERMINATED?
BY EXPIRATION OF TIME DETERMINED AT THE TIME OF ITS CREATION OR BY EXTINGUISHMENT, DETERMINED BY EVENTS SUBSEQUENT TO ITS CREATION
WHAT ARE THE 3 CLASSES OF LICENSES?
1. LICENSE/MERE LICENSE (REVOCABLE)
2. LICENSE COUPLED WITH AN INTEREST (IRREVOCABLE)
3. IRREVOCABLE LICENSE
LICENSE
PERMITS ONE PERSON TO COME ONTO LAND IN THE POSSESION OF ANOTHER WITHOUT BEING A TRESPASSER
HOW IS A LICENSE DISTINGUISHED FROM A LEASE?
A LICENSEE NEVER HAS POSSESION OF THE LAND, WHILE A LESSEE DOES
HOW IS A LICENSE DISTINGUISHED FROM AN EM?
AN EM IS A SUBSTANTIAL INCORPOREAL INTEREST IN THE LAND OF ANOTHER AND IS CREATED BY A DEED OF CONVEYANCE, WHICH MUST COMPLY WITH THE SOF, OR BY A VALIDLY EXECUTED WILL; A LICENSE IS NOT AN INTEREST IN LAND AND REQUIRES NO FORMALITIES FOR ITS CREATION
HOW IS A LICENSE DISTINGUISHED FROM A CONTRACT?
CONTRACT ALWAYS BASED ON CONSIDERATION--MAY OR NOT BE CONSIDERATION FOR A LICENSE
AN ATTEMPT TO CREATE AN EM WHICH FAILS BECAUSE THE DEED OF CONVEYANCE IS DEFECTIVE WILL RESULT IN A _____
LICENSE
WHEN IS A LICENSE ASSIGNABLE?
WHEN THE LICENSOR INTENDS
IS A LICENSE COUPLED WITH AN INTEREST ASSIGNABLE?
YES
LICENSE COUPLED WITH AN INTEREST
IF ONE OWNS PERSONAL PROPERTY ON THE LAND OF ANOTHER WITH A PRIVILEGE INCIDENTAL TO SUCH PERSONAL PROPERTY
EXECUTED LICENSE, AKA AN ORAL LICENSE ACTED UPON
IF A LICENSEE IN EXERCISING HIS LICENSE AND IN REASONABLE RELIANCE UPON REPRESENTATIONS MADE BY THE LICENSOR AS TO THE DURATION OF THE LICENSE, HAS MADE EXPENDITURES OF CAPITAL OR LABOR SO THAT IT IS INEQUITABLE FOR THE LICENSE TO BE DISCONTINUED
AN _____ LICENSE IS BASED ON ESTOPPEL AND IN MANY CASES IS AN EQUIVALENT TO AN EM
EXECUTED
WHEN IS A LICENSE REVOKED AUTOMATICALLY?
BY THE LICENSOR'S CONVEYANCE OF THE LAND OR BY HIS DOING AN ACT INCONSISTENT WITH THE CONTINUANCE OF THE LICENSE
WHAT IS THE PURPOSE OF THE RULE THAT LICENSE RELATING TO THE UNDERTAKING OF ACTIVITES ON ANOTHER'S LAND IS REVOCABLE BY A CONVEYANCE OF THE LAND?
TO PROTECT THE MARKETABILITY OF TITLES
WHAT 4 ELEMENTS MUST BE ESTABLISHED FOR PRIVATE NUISANCE?
1. THE INTERFERENCE WITH THE P'S USE AND ENJOYMENT OF HER LAND MUST BE BOTH SUBSTANTIAL AND UNREASONABLE
2. THE D'S CONDUCT MUST BE EITHER (1)INTENTIONAL AND UNREASONABLE; OR (2) NEGLIGENT, RECKLESS, WANTON, OR UNUSUALLY HAZARDOUS;
3. THE D'S CONDUCT MUST CAUSE THE INTERFERENCE
4. THE O MUST HAVE AN INTEREST IN THE LAND THAT IS INJURED BY THE OCNDUCT, ALTHOUGH EVEN A SHORT TERM TENANCY MAY BE SUFFICIENT
PUBLIC NUISANCE
CONDUCT THAT CAUSES PUBLIC INJURY GENERALLY
WHAT IS THE ESSENTIAL BASIS FOR LIABILITY IN A PRIVATE NUISANCE?
INTERFERENCE WITH THE USE AND ENJOYMENT OF LAND
RIGHT OF LATERAL SUPPORT
LAND IN ITS NATURAL CONDITION IS ENTITLED TO BE HELD IN PLACE FROM THE SIDES BY THE NEIGHBORING LAND
RIGHT TO SUBJACENT SUPPORT
SUPPORT FROM UNDERNEATH THE SURFACE AS OPPOSED TO THE SIDES
ELEMENTS OF A REAL COVENANT
1. MUST BE A COVENANT (OR CONTRACT)
2. MUST BE AN INTENT THAT THE COVENANY RUN WITH THE LAND
3. COVENANT MUST TOUCH AND CONCERN THE LAND
4. MUST BE HORIZONTAL/VERTICAL PRIVITY
WHAT IS THE TRADITIONAL RULE RE: RESERVATION OF AN EM IN FAVOR OF A STRANGER/THIRD PARTY? DOES TX FOLLOW THE TRADITIONAL RULE?
EM CANNOT BE RESERVED IN FAVOR OF A STRANGER TO THE TITLE; TX FOLLOWS THIS RULE
EASEMENT BY ESTOPPEL
IRREVOCABLE/EXECUTED LICENSE
IN TX, WHERE A LICENSE INVOLVES RIGHT TO USE REAL PROPERTY, MUST IT CONFORM TO THE SOF?
YES
AN IMPLIED EM IS AKA:
QUASI-EM
IMPLIED EM--GRANT REQS
1. COMMON OWNERSHIP
2. CONTINUED/PERMANENT USE
3. SEVERANCE
4. REASONABLE NECESSITY
IMPLIED EM--RESERVATION REQS
1. COMMON OWNERSHIP
2. CONTINUED/PERMANENT USE
3. SEVERANCE
4. STRICT NECESSITY
WHAT CONSTITUES REASONABLE NECESSITY?
CONVENIENT AND COMFORTABLE USE OF THE PARCEL THAT IS BENEFITTED
IMPLIED EM BY NECESSITY
LANDLOCKED
IN TX, DOES THE COMMON OWNERSHIP ELEMENT IN IMPLIED EM'S MEAN COMMON OWNERSHIP IN THE IMMEDIATE GRANTOR?
NO, JUST NEEDS TO BE HELD IN COMMON AT SOME POINT IN TIME
IS THERE AN IMPLIED EM WHERE THE EM IS NOT APPARENT?
NO, BUT THIS DOES NOT MEAN IT MUST BE VISIBLE (IE, SEWER LINES ARE NOT VISIBLE BUT ARE APPARENT )
WHAT IS A POSSIBLE DEFENSE TO AN EM BY PRESCRIPTION?
ACCOMODATION
IRREVOCABLE LICENSE
WHAT IS THE PRESCRIPTIVE PERIOD IN TX?
NO STATUTORY INDICATION, BUT CASE LAW SEEMS TO INDICATE 10 YRS
CAN MEMBERS OF THE GENERAL PUBLIC ACQUIRE A PRESCRIPTIVE RIGHT?
NO
IMPLIED DEDICATION REQS
1. LONG, CONTINUED USE (50+ YRS)
2. KNOWLEDGE/CONSENT OF OWNER
3. INTENTION OF OWNER CLEARLY SHOWN
WHEN DOES TX PROHIBIT IMPLIED DEDICATION?
IN COUNTIES WITH POPULATIONS OF LESS THAN 50K
IN TX, HOW CAN THE PUBLIC TO ACQUIRE A PRESCRIPTIVE RIGHT TO A ROAD?
1. OWNER OF THE SOIL PERMITS THE PUBLIC TO USE THE LAND
2. ALL ELEMENTS OF PRESCRIPTION ARE IN PLACE
3. FOR AT LEAST 10 YRS WITH THE KNOWLEDGE OF THE OWNER WITHOUT PERMISSION
PUBLIC TRUST DOCTRINE
(FROM ROMAN LAW) BY THE LAW OF NATURE, THERE ARE THINGS THAT ARE COMMON TO MANKIND--AIR, RUNNING WATER, SEA AND CONSEQUENTLY THE SHORE--NO ONE CAN BE PREVENTED FROM ACCESSING THE SEA; USED TO BE APPLIED TO THE RIGHT OF NAVIGATION, FISHING--NOW APPLIED TO AREAS INCLUDING RECREATIONAL USES
WET SAND AREA
SAND BETWEEN HIGH TIDE AND LOW TIDE
DRY SAND AREA
ABOVE HIGH WATER MARK
TX OPEN BEACHES ACT
AFFIRMS THE PUBLIC POLICY OF THE STATE WITH REGARD TO BEACHES--PUBLIC SHOULD HAVE UNRESTRICTED ACCESS TO INGRESS AND EGRESS TO STATE OWNED BEACHES THRU WET SAND AREA TO LINE OF VEGETATION
TO WHAT LOCATIONS IS THE TX OPEN BEACHES ACT APPLIED?
THE OPEN WATERS OF THE GULF OF MEXICO, ISLANDS AND BAYS BUT NOT REMOTE BEACHES ON ISLANDS NOT ACCESSIBLE BY FERRY OR ROAD
WHAT IS A SURCHARGE? WHAT IS THE CONSEQUENCE OF A SURCHARGE?
IF THE OWNER OF THE DOMINANT ESTATE INCREASES THE USE OF THE EM BEYOND THAT WHICH WAS INTENDED BY THE PARTIES, THE SERVIENT ESTATE IS SAID TO BE SURCHARGED; THE PENALTY IS THAT THE EM IS DESTROYED AND CONSIDERED ABANDONED
IS AN EM IN GROSS ASSIGNABLE?
IF THE PARTIES' INTENT TO MAKE IT SO IF CLEAR; IF NOT, A COMMERCIAL EM IN GROSS IS ASSIGNABLE, BUT NOT A PERSONAL EM IN GROSS
IS AN EM APPURTENANT APPORTIONABLE/DIVISIBLE?
YES, AS LONG AS THE COMBINED USE DOES NOT OVERBURDEN THE SERVIENT ESTATE
IS AN EM IN GROSS APPORTIONABLE/DIVISIBLE?
IF THERE IS AN INTENT OF THE PARTIES' TO MAKE IT SO--BUT MUST FOLLOW ONE STOCK RULE
ONE STOCK THEORY
WHEN TWO OR MORE PERSONS INHERIT OR OTHERWISE SHARE THE EXCLUSIVE RIGHT TO AN EM, THE OWNERS MUST ACT WITH ONE VOICE--EACH HAS A VETO ON ANY ACTION TAKEN, TRANSFERS MUST BE WITH UNANIMOUS CONSENT
CAN A REAL COVENANT OR EQUITABLE SERVITUDE BE ACQUIRED BY PRESCRIPTION?
NO
TOUCH AND CONCERN
THE LEGAL INTEREST OF THE OWNER OF THE LAND BECOMES EITHER MORE OR LESS VALUABLE BECAUSE OF THE EXISTENCE OF THE COVENANT/SERVITUDE
NEGATIVE RECIPROCAL EM
EQUITABLE SERVITUDE
IN TX, MUST EQUITABLE SERVITUDES SATISFY THE SOF?
YES
WHAT IS THE MINORITY OPINION RE: EXTINGUISHMENT OF A SERVITUDE VIA EMINENT DOMAIN? IS IT COMPENSABLE? DOES TX FOLLOW THIS RULE:
DOMINANT ESTATE NOT A TRADITIONAL PROPERTY RIGHT AND IS NOT COMPENSABLE--PROPERTY TAKEN BY EMINENT DOMAIN IS TAKEN IN WHOLE TITLE--ANY EM, RC, OR ES IS EXTINGUISHED
EQUITABLE SERVITUDE REQS
1. INTENT
2. TOUCH AND CONCERN
3. NOTICE (ACTUAL OR CONSTRUCTIVE)
HOW IS AN EQUITABLE SERVITUDE CREATED?
1. INSTRUMENT WHICH COMPLIES WITH THE SOF
2. INTENTION THAT THERE BE A RESTRICTION ON THE USE OF THE LAND INVOLVED
WILLARD V FIRST CHURCH OF CHRIST SCIENTIST, PACIFICA
THIRD PARTY GRANT CASE; (CHURCH--THEY ALLOW IT HERE BUT NOT IN TX)
SHEARER V HODNETTE
IRREVOCABLE LICENSE CASE; LICENSES ARE PERSONAL AND NOT AN INTEREST WHICH CAN BE ASSIGNED, CONVEYED, OR INHERITED
ROMANCHUK V PLOTKIN
IMPLIED EM (GRANT) CASE--USE OF SEWER
ROY V EURO-HOLLAND VASTGOED BV
EM BY NECESSITY CASE