Property Law Ii

Front 1

What is an Easement?

Back 1

An easement is a non-possessory interest in real property that gives its owner a right of use over the property of another. - RIGHT TO USE or RESTRICT USE

Front 2

What is a Negative Easement?

Back 2

Right to restrict the use of the land of another.

Front 3

What are the 3 types of Servitudes? (Think about how you create no-possessory interests in land)

Back 3

Easements, Licenses, Covenants

Front 4

What is a license?

Back 4

Permission to use land, the absence of which would constitute a trespass.

Front 5

What are the 3 types of Licenses?
(M-E-L)

Back 5

Mere License
License Coupled w/ an Interest
Executed License

Front 6

How do you approach an easement question? (7 Steps)

Back 6

Scope, Appurtenant or In Gross, Identify Dominant/Servient Estate, Affirmative/Negative, Specific/General, With/Without Profit, Manner of Creation

Front 7

Explain Scope of an Easement

Back 7

What was intended when created - use of easement that was reasonably expected by the parties at the time of creation.

Front 8

Explain Appurtenant vs In Gross Easements. (Look at the benefit of the easement)

Back 8

APPURTENANT- at least 2 pieces of property attached to the easement. Easement benefits the owner of real property & allows for use & enjoyment of real property.
IN GROSS - One piece of property involved (servient estate), benefits a specific person - can be recreation or commercial.

Front 9

Explain dominant vs servient estates.
(Goes with Appurtenant Easements)

Back 9

Dominant Estate - The estate that benefits from the easement.

Servient Estate - Estate burdened by the easement.

Front 10

Explain Affirmative vs Negative Easement

Back 10

Negative - Forbids one landowner from doing something on his land that might harm his neighbor.
Affirmative - Rights to use: Right of way, Right to enter, Right to remove resources.

Front 11

Explain Specific vs. General (easements)

Back 11

Specific - use limited to a specific part of the servient land.
General - Use is not limited to a specific part of the servient land.

Front 12

What is a profit? Examples? (Easements)

Back 12

Rights to take something off the land that was thought of as part of the land.
- Timber, Minerals, Wild Game, Fish, Crops

Front 13

What are the 4 types of easements that can be created by writing or allowance/permission? Briefly Explain Each. (EIEP)

Back 13

Expressed - A grants B an easement.
Implied - Prior existing use or necessity.
Estoppel - B estops A from doing something that would interfere with B's use of his property.
Prescription - Like Adverse Possession without the exclusive requirement.

Front 14

What is the only way to create a negative easement?

Back 14

Only by an expressed grant.

Front 15

Implied Easements are created 2 ways, what are they? (One way has 5 sub-methods of creation)

Back 15

By Necessity - Ingress Egress
By Prior Use:
1. Quasi Easement - Broken pieces of land serving main land
2. Servient split up the land
3. Reasonably necessary for enjoyment
4. Apparent
5. Continuous

Front 16

What is a mere license? When is it revocable? If purchased, what is remedy?

Back 16

Permission to go onto property that would otherwise be a trespass (revocable at will). Remedy is damages if purchased.

Front 17

Discuss a license coupled with an interest. (How created,

Back 17

It's a license that is incidental to ownership of chattel on the licensor's land. It's irrevocable so long as owner has an interest in the property.

Front 18

Discuss an Executed License. (how created, length)

Back 18

An executed license is an easement by estoppel. This occurs when the licensee makes an expenditure of capital or labor, in reasonable reliance, such that it would be inequitable for the license to be revoked. Presumed to last forever unless there's evidence to the contrary.

Front 19

How do you distinguish a License from an Easement?
(How are they created, contract vs deed?)

Back 19

1. If it was by deed, then it's an easement.
2. If it was by contract, then it is a license.

Front 20

Easements are created 2 ways, what are they? (to answer, think about how an expressed easement is created and how an implied easement would be created)

Back 20

Created by writing (deed)
Created by estoppel (allowance or permission)

Front 21

What is a servitude?

Back 21

A non-possessory interest in real property.

Front 22

What are the 3 types of servitudes? (LEC)

Back 22

Licenses
Easements
Covenants

Front 23

What are the two forms of covenants?

Back 23

Restrictive - Run with the land at law.
Equitable Servitudes- Run with the land in equity.

Front 24

Explain the 3 things needed for an implied easement created via prior existing use. (Think water from a common well easement)

Back 24

1. Land in common severed into 2+ parcels with separate ownership.
2. Before severence, the benefit from one part to another part of the land was apparent, continuous & permanent.
3. Continuation of the use is necessary for the enjoyment of the benefited part.

Front 25

Explain an implied easement created by necessity. (Only type is right of way)

Back 25

1. Land in common ownership
2. Severed into 2+ parcels
3. The secerence creates the necessity of the right of way.

Front 26

How long does an easement of necessity last?

Back 26

Only as long as it is necessary.

Front 27

The benefit of the easement runs with the dominant estate . .. True/false?

Back 27

TRUE

Front 28

Under the public trust doctrine, what parts of a beach does the public have a right to access?

Back 28

The public must have reasonable access to the water/west sand area of a beach.

Front 29

In a notice jurisdiction, when does an easement run with the land?

Back 29

When the subsequent purchaser has notice of the easement.

Front 30

What is required in order for an easement to run with the land of a servient estate?

Back 30

NOTICE NOTICE NOTICE

Front 31

Discuss how appurtenant easements operate when either of the properties are sold/conveyed (assigned).

Back 31

APPURTENANT - burden of easement runs with the land, provided notice (inquiry or expressed). Benefit runs with dominant estate from owner to owner.

Front 32

Discuss the assignability of individual easements in gross.

Back 32

IN GROSS - Burden runs with the land as long as there's notice. Individual benefits cannot be assigned or transferred.

Front 33

Discuss the assignability of commercial easements in gross.

Back 33

These, unlike individual in gross, are presumed assignable. Theory is that this is similar to buisnesses - benefit will run with the owner of the business.

Front 34

Discuss the divisibility of commercial easements in gross. (Exclusive vs. Non-Exclusive Benefits)

Back 34

To be divisible, you must determine if the easement is exclusive.
1. Exclusive easements (benefit to 1 party) can be divided depending on factual circumstances (whether reasonable amount so as not to burden the property). Cannot be a surcharge on the servient estate)
2. Non-Exclusive easements are not divisible.

Front 35

When do easements terminate?

Back 35

1. When necessity ends (for easements by necessity)
2. A Natural Termination Point (when it was expressed that the easement would end).
3. When there's unity of ownership (merger doctrine)
4. When dominant releases/gives up benefit.
5. When there's Adverse Use.

Front 36

What are the two types of running covenants? (Covenants that run with the land) What relief is available for breach?

Back 36

1. Covenants that run with the land at law - Relief is equitable & legal for non-breaching party.
2. Covenants that run with the land in equity - Only entitled to equitable relief.

Front 37

What is required for a covenant that runs with the land at law? (5 things)

Back 37

1. Must be in writing (specific & not vague)
2. Intent - parties intended to run with the land
3. Touches & concerns land - does burden/benefit impact use, utility or value of properties?
4. Notice - enforced party must have
5. Privity - Horizontal & Vertical

Front 38

What are the two types of horizontal privity and when/how are they created? (Think Timing of Interests)

Back 38

MUTUAL - Interest @ Same Time: landlord/tenant, concurrent interests, easements, present possessory/future interests, mortgagor/mortgagee relationship.
SUCCESSIVE - grantor/grantee relationship. Promise must be made at time of grant. Grantor is covenantor and grants to covenantee.

Front 39

What is vertical privity? What does it look like?

Back 39

Relationship between one of the parties and a successor.

A----B
I I
I I
C D

Front 40

How much of the property needs to be acquired for a covenant to run with the land for the 1) burdened party and 2) Benefited Party?

Back 40

UNDER BURDEN - Successor must aquire all of the interest in the property.
UNDER BENEFIT - Successor only has to acquire some of covenantee's interest.

Front 41

For a covenant to run with the land in equity, what characteristics must the covenant possess? How does this differ from the characteristics of a covenant that runs with the land at law?

Back 41

1. Must be in Writing
2. Must be intentional
3. Must touch & concern the land
4. Must have notice
PRIVITY IS NOT NEEDED

Front 42

What is a negative reciprocal covenant? (Think Subdivisions)

Back 42

All owners in the subdivision are covenantors and covenantees b/c the covenants both benefits & burdens each owner the same.

Front 43

Where can covenant sbe found?

Back 43

In a common plan or the common scheme of the subdivision.

Front 44

What is required for an equitable covenant to be enforceable? (where must the covenant appear in relation to the chain of title in question)

Back 44

The covenant need only appear somewhere, it doesn't have to exist within the specific chain of title in question.

Front 45

What is required for a covenant to be enforceable at law? (think about where the covenant has to exist)

Back 45

The covenant must be found in the chain of title or specific document. It's not enough for it to exist somewhere, it has to be somewhere specific.

Front 46

Explain what touches & concerns the land means (under traditional test)

Back 46

It means that the burden of the covenant decreases the use, value, or utility of the coventor's land. On the flipside, it means that the benefit increases the use, value, or utility of covenantees land.

Front 47

Covenantee vs. Covenantor, who has burden & who has benefit?

Back 47

Covenantor has burden.
Covenantee receives benefit.

Front 48

Is a covenant valid if there is no benefited party?

Back 48

No, because generally the law wants property to be alienable - and a burdened property is not alienable. The law is okay with a burden as long as there is a corresponding benefit.

Front 49

Explain record vs inquiry notice.

Back 49

Record notice means that the covenant is recorded within the record of the title/deed. Even if the purchaser doesn't find it, it's valid b/c it's in the record.
Inquiry Notice - You are aware of something that if further explored, would reveal the existence of the covenant. (every house is 1 story, it makes sense that there's a reason why)

Front 50

Explain what touches & concerns the land means under modern test (think affirmative covenants . . .why do parties care about the covenant).

Back 50

The covenant has to effect the legal rights of the property owners for the use of their land.
Do parties care about the covenant b/c it impacts their property?

Front 51

When will a covenant not be upheld by the court? (3 Instances)

Back 51

1. unconstitutional
2. against public policy
3. unreasonable - capricious or arbitrary

Front 52

When will a covenant be terminated?
(5 instances)

Back 52

1. Changed Circumstances - changes make the covenant inequitable or of no value to the parties.
2. Violates Public Policy
3. Merger - All covenanted properties merge to single owner.
4. Agreement to release - between parties.
5. Abandonment - must unequivocally manifest intent to give up covenant.

Front 53

When will the court deny the enforcement of a covenant that appears enforceable on its face? (L-E-U-RH)

Back 53

1. Waiver/Laches - slept on your rights - waited too long to enforce.
2. Unclean Hands - Plaintiff is also in breech.
3. Estoppel
4. Relative Hardship (the burden is greater to enforce than the benefit of enfrocement).

Front 54

What are the 3 types of recording systems & what is required under each for a subsequent purchaser to prevail?

Back 54

1. Race - subsequent purchaser must record first.
2. Notice - Sub. Pur. must acquire interest in the property with out notice of the prior interest.
3. Race/Notice - Must have acquired property without notice of the prior interest and must have recorded first.

Front 55

What are the 2 indexes used to record the transactions of land?

Back 55

Tract index - tracts of land have parcel #'s and you track every transaction for each parcel.
Grantor/Grantee Index - Find the original grantor, then go forward to find the grantor that your interest is derived from.

Front 56

How do recording systems treat people who receive land as gifts?

Back 56

People who receive land as gifts are not protected under any of the recording statutes. The law favors land transactions with consideration.

Front 57

O-->A; A does not record.
O-->B as a gift, B has no notice and records before A. Who prevails?

Back 57

A because B received the property as a gift.

Front 58

What is the shelter rule?

Back 58

the shelter rule says that a person who takes from a bona fide purchaser that was protected by the recording act has the same rights as his grantor. BUT you still need to record b/c you won't be protected from subsequent purchasers.

Front 59

For notice/race-notice, what are the two types of notice?

Back 59

ACTUAL - You've actually seen the deed or document of conveyance (knowledge-in-fact)
CONSTRUCTIVE - Inquiry or Record Notice.

Front 60

What is Inquiry Notice and what is Record Notice?

Back 60

INQUIRY- Some knowledge sufficient to give a prudent person notice if they were to inquire further about the knowledge.
RECORD - There has been previous record of the conveyance in the public record (a prudent person would check there).

Front 61

What is the Mother Hubbard Clause?

Back 61

A Mother Hubbard Clause is a provision in a deed for the conveyance of real property that includes somewhat ambiguous language that attempts to sweep within it other parcels not specifically described.

Front 62

What is the Doctrine of Idem Sonans, and when does it apply?

Back 62

Requires purchasers to search all names that sound or are similar to names of sellers. Middle names & nicknames are not dispositive.
(Most jurisdictions do not place this burden)

Front 63

What is a WILD Deed?

Back 63

A recorded deed that is not in the legal chain of title. Usually b/c a previous title was not recorded properly. A subsequent purchaser would not have constructive notice of the deed.

Front 64

What does a record title act do?

Back 64

It eliminates the need to search back to the original title to a property by establishing a statutory period from which you can determine a "root title". Usually 40 Years.
Exceptions are: re-recorded deeds, instances where interested party is also in possession, and when the interest belongs to the government.

Front 65

What is a nuisance?

Back 65

A Substantial, Non-trespassory invasion in another's interst in the private use and enjoyment of their land.

Front 66

What are the 2 ways in which a nuisance can exist? (2 types of nuisance)

Back 66

Nuisance Per Se - Act, Occupation, or Structure which is a nuisance AT ALL TIMES (Crack House)

Nuisance in Fact - Acts, Occupations, or Structures that become nuisances due to their location, or by reason of th emanner in which they are constructed, maintained, or operated.

Front 67

Explain public vs. private nuisance (which is more common?)

Back 67

Public - viation to a community as a whole (public safety, public health, or disturbance of the peace) that is typically brought by a city official.
Private - More common type in which interest interfered with is in use and enjoyment of private property.

Front 68

Explain Unintentional Nuisances (must they be unreasonable?)

Back 68

They are: Negligent, Reckless, Ultra-hazardous. They do not have to be unreasonable.

Front 69

Explain Intentional Nuisances

Back 69

1. For purpose of causing harm
2. Know harm will Result or that it is substantially certain to occur
3. Must be unreasonable.

Front 70

What are the tests for determining reasonableness/unreasonableness of an intentional nuisance? (2 of them, use both)

Back 70

Threshold Test - Look at level of interference.
Balancing Test - Look at gravity of harm vs utility of the conduct.

Front 71

Explain the terms: Pollutor, Receptor, and Entitlement as they relate to nuisances.

Back 71

Pollutor - the entity accused of creating a harm.
Receptor - the entity who's use and enjoyment is being violated
Entitlement - The right to use which will be upheld.

Front 72

What are the 4 possible outcomes to a nuisance action? (think in terms of what the court can do with regards to the offending use)

Back 72

Injunction - offending use must stop
No Relief - Use continues
Monetary Damages - Use continues if polluter pays damages to receptor.
Purchased Injunction - Use must stop if receptor pays damage to pollutor.

Front 73

What is the general scope for a municipality's zoning authority? (What policy purposes does zoning serve?)

Back 73

A city/county can enact zoning ordinances or restrictions to provide for the Heath, Safety, & Economic Welfare of its citizens.

Front 74

What are the two types of zoning ordinances/restrictions?

Back 74

1. Height, Bulk & Area Restrictions (the physical aspects of the property)
2. Use Restrictions (how property can be used)

Front 75

Ordinances that restrict the uses of a property can be crafted in two ways . .. what are they?

Back 75

1. Cumulative - higher & lower uses - higher = single family houses; lower = industrial uses
2. Exclusive - areas are designated for certain uses and for those uses alone.

Front 76

Explain what a variance is with regards to zoning.

Back 76

A variance allows for the departure from a zoning ordinance fore reasons of unnecessary hardship.

Front 77

Explain Nonconforming Uses

Back 77

This is a use that was lawful prior to the enactment of a zoning plan, and use is allowed to continue.

Front 78

Explain substantive due process and how it applies to zoning.

Back 78

Substantive due process is the constitutional requirement that no person be deprive of life liberty or property without due process of law. If a right has been deprived, the courts use strict scrutiny to determine validity of the ordinance.

Front 79

Explain equal protection as applied to zoning issues.

Back 79

Landowners must be given equal protection under the zoning laws.

Front 80

What is the cumulative zoning hierarchy?

Back 80

Single Family Home
Two family housing
Multi family housing
Commercial uses
Light industrial
Heavy industrial
All higher uses are included in cumulative zoning plans. so multi-family zone also allows double and single family homes.

Front 81

Explain due process and what two amendments it falls under.

Back 81

5th Amendment - no person shall be deprived of life, liberty, or property without due process of law.

14th Amendment extends to state law.

Front 82

What's the difference between Substantive & Procedural due process?

Back 82

Substantive due process asks whether the law is fair, while Procedural due process asks whether it is fairly applied.

Front 83

What are the three tests (stages) used by the court to determine the validity of an ordinance?

Back 83

1. Rational Relationship Test
2. Fundamental Constitutional Rights Test
3. Narrowly Tailored Test?

Front 84

Explain the steps of the Rational Relationship Test. (2 steps) What is the typical outcome?

Back 84

State Interest + Means (law) Related to Interest

1. Was the state's main goal in enactment the promotion of a legitimate state interest?
2. The law (the means) is rationally related to that goal?
Typically law passes test and moves on to the Fundamental Constitutional Rights Test

Front 85

Discuss the Fundamental Constitutional Rights Test.

Back 85

1. Asks whether ordinance infringes on fundamental const. right (voting, free speech, interstate travel).
2. If it does, then state must then demonstrate that the state's interest outweighs the individual right.

Front 86

What's it called when the state demonstrates that its interest in zoning outweighs the individual right that the ordinance infringes upon? What are the requirements?

Back 86

It's called a compelling state interest. It must be narrowly tailored to achieve the state's interest while minimally infringing upon the rights of the individual.

Front 87

Name the enumerated legitimate state interests served by zoning ordinances.
(6 Interests)
"FCANSS"

Back 87

Safety, Security, Reduces Accidents, Decreases Noise, Preserves an environment in which to raise children, and Prevents Fires.

Front 88

What is a special exception in zoning? Examples?

Back 88

Things that are built into the code that do not have to conform with the ordinance. Things designed to benefit the lifestyle of the community covered by the ordinance. Don't tend to devalue.
Hospitals, Fire Stations, POlice Depts.

Front 89

Variance vs. Special Exception

Back 89

Variance - Prohibited Use Allowed
Spec. Exception - A non-conforming use that is expressly permitted under ordinance.

Front 90

What is the taking clause?

Back 90

"Nor shall any property be taken for public use, without just compensation."

Front 91

How are zoning acts challenged?

Back 91

1. Due Process - Action is arbitrary & capricious
2. Equal Protection - Action does not treat similarly situated people similarly.
3. Right to Privacy - Liberty interest violated.
4. FHA - The action goes beyond what is reasonable by the state actor and is discriminatory.

Front 92

What is a bona fide purchaser?

Back 92

Purchases who:
1. Pays value for the land
2. Has no notice of previous outstanding claim or title to the land; and
3. Doesn't know that someone else has better title.

Front 93

What is just compensation with regards to eminent domain?

Back 93

Fair market value (not replacement cost)

Front 94

What constitutes (or may constitute) a taking under the constitution? What explicitly does not constitute a taking?

Back 94

1. Permanent physical occupation
2. Regulations that prohibit all or virtually all economic or beneficial uses of the land
3. Gov't action that decreases the economic value (may)
Nuisance Control does not constitute a taking.

Front 95

Nuisance v. Taking?

Back 95

Nuisance - The property is detrimental to the public well being.

Taking - The property is taken because it is (or will be) useful to the public.

Front 96

How do you work a nuisance question on the exam?

Back 96

1. Identify conduct at issue
2. Determine whether it's a nuisance. If yes, why?
3. Nuisance Per Se or Nuisance in Fact?
4. Public or Private Nuisance?
5. Intentional or Unintentional?
6. If intentional, is it reasonable?
7. What is the remedy?