Property2

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Easement

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a nonpossessory, irrevocable interest in the land of the other

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A license

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nonpossessory, revocable interest where land owner permits another to use his property

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The 2 parcels created by an easement

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Dominant Tenement and Servient Tenement

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Dominant Tenement

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the land benefitted by the easement

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Servient Tenement

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the land burdened by the easement

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Affirmative easement

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giving dominant owner a right to do something

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Easement of way

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right to cross property in a defined way

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Negative easement

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easement giving dominant owner the right to prevent servient owner from doing something

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“Solar easement”

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servient owner prevented from building structure that would block sun from hitting panels

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Easement appurtenant

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connected to a particular parcel going to whomever owns the parcel

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An easement appurtenant runs with the

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land

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An easement in gross

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connected to an individual identity

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An easement in gross runs with

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the person who was a party to the transaction

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Express easement

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created intentionally, in writing, by owners of servient and dominant tenements

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A reservation (easement)

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a provision in deed creating some new servitude which did not exist before as an independent interest

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“O conveys Blackacre to A, reserving a 20-foot-wide easement for himself” is an example of

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a reservation

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Exception (easement)

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a provision in a deed excluding from the grant some preexisting servitude on the land

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“after O’s conveyance, A conveys Blackacre to B, except for the easement previously reserved by O” is an example of an

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exception

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Easement by estoppels

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an equitable doctrine, if plaintiff is given a license (revocable in nature) and is allowed to erect structures/make improvements, the license becomes irrevocable

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The duration of an easement by estoppels is

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as long as the nature of the license calls for

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Elements of an easement by estoppels

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license was granted to the easement-claiming party and substantial expenditure by claimant in reasonable reliance on the license not being revoked

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“Reasonable reliance” (easement by estoppel)

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when servient owner knows/has reason to know that improvements are being made and does not object

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Easement by prescription

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similar to adverse possession but without exclusivity

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Elements of easement by prescription (6)

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(1)statutory period, (2)under claim of right, (3)peaceable, (4)continuous, (5)open and notorious, (6)with knowledge of acquiescence of owner of soil

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Easement implied by prior use

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courts imply when the use was in place at the time before a single parcel of land was divided into 2 parcels

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Elements of easement by prior use (5)

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(1)unity of title, followed by separation, (2) prior to separation, one part of the land was used for the benefit of another part, (3) such uses would be called a quasi-easement, (4)prior to separation, the use of the quasi-easement was long continued and obvious or apparent, (5) continued use of the easement is necessary to some degree for the beneficial use of the land to be benefited by the easement

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Quasi-easement

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an easement-like right occurring when both parcels of land are owned by the same person. It will become a true easement if the landowner sells one of the parcels.

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Constructive notice (easements)

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you may have not known that the easement existed, but you should have

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Inquiry notice (easements)

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where the facts are such that a reasonable person would inquire further to learn whether a quasi-easement exists

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Easement by necessity

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arises when a grantor conveys a landlocked parcel

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Elements of easement by necessity (3)

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(1)common owner severed the property, (2)necessity existed at the time of the severance, (3) easement is strictly necessary to enter/exit the landlocked parcel

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Limitations of easement by necessity (2)

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(1)must be a transaction creating a landlocked parcel and (2)only involves parties to the transaction who created the landlocked

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Dormancy (SoL) easement by necessity

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a landlocked easement may lie dormant. SoL clock won’t start until necessity arises.

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Necessity of easement majority standard is…

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strict, if it is possible to get to your land even if very inconvenient, an easement is not necessary

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Commercial easements in gross

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easements furthering a money-making activity

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Examples of commercial easements in gross

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railroad easements and utility easements

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Commercial easement in gross assignability

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if parties intended it to be assignable, commercial easement in gross is assignable

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One-stock rule (commercial easements)

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occurs when multiple people share an easement

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Concurrent estates (commercial easements)

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each owner has a % stake

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Noncommercial easements in gross

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easements granted for the owner’s personal enjoyment or pleasure

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Noncommercial easements in gross (assignability)

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they are not assignable

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“Misuse” of easement

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a term of art for using an easement to access a parcel that was not originally intended to be the dominant estate

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Majority rule on “misuse” of easement

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an easement appurtenant to one parcel of land may not be extended by the owner of the dominat estate to other parcels owned by him

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Minority rule on “misuse” of easement

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if owner misuses the easement, but does not harm or increase a burden on the servient owner, it is not a “misuse”

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Abandonment (termination of easements)

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non-use + some act by easement owner indicating his intention to abandon

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Merger (termination of easements)

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servient tenement and dominant tenement comes into hands of 1 owner, extinguishing easement even if parcel is later divided again

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Prescription (termination of easements)

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servient tenant takes action inconsistent w/ the continued existence of the easement, and benefited owner takes no counter-action during the statutory period for prescription

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Estoppel (termination of easements)

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servient tenant takes action inconsistent w/ continued existence of easement in reasonable reliance on behavior of dominant tenant (very similar to creation of easement by estoppels)

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Loss of purpose (termination of easement)

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if there’s no longer a need for the easement, no more easement

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Release (termination of easement)

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by express, written agreement, the parties agree to terminate the easement

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Defeasible/Expiration (termination of easement)

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easement ends at stated period or on the happening of some event

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Real covenants running w/ land

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a promise concerning the use of land that benefits and burdens original parties to promise and also their successors, and is enforceable in an action for DAMAGES

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Covenants running w/ land elements (6)

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(1)writing meeting SoF, (2)intent, (3)touch and concern the land, (4)horizontal and (5)vertical privity, (6)notice

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“touch and concern” the land

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must relate to a direct use or enjoyment of land

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Horizontal privity

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original agreement created between original parties in connection with the transfer of land (landlord tenant, grantor grantee)

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Vertical privity

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relationship between one of the original parties and a successor

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Equitable servitudes

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a promise concerning the use of land that benefits and burdens original parties and their successors to promise and is enforceable in an action for injunction

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Equitable servitudes are actions enforceable for (remedy

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injunction

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Real covenants are actions enforceable for (remedy)

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damages

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“Runs with the land”

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it burdens or benefits whomever obtains the land after the original promise is made

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Elements of equitable servitude (4)

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(1)writing meeting SoF, (2)intent, (3) “touch and concern” land, (4)notice

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Tulk v. Moxhay

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first case to recognize a covenant enforceable in equity (equitable servitude)

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If party is seeking damages it is a

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real covenant

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If party is seeing injunction it is an

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equitable servitude

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Real covenants (creation of covenants)

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must be created by a written instrument signed by covenantor

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Equitable servitude implied from a common plan or scheme

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Sanborn (gas station case)

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Reciprocal negative servitude rule

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where vendor (developer) embarks on a common plan or scheme to build a development w/ mutually enforceable restrictions, and vendor sells lot with some explicit restrictions

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Termination of covenants running w/ the land

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nearly identical to terminating easements

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Covenants don’t usually expire unless they

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contain an expiration date

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Public land use controls - zoning

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land use laws promulgated by the gov’t, regulating usages such as building codes, road construction, utility services, asthetic regulations, etc.

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First supreme court case recognizing constitutionality of zoning

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Village of Euclid v. Amber Realty Co.

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Purpose of zoning

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certain uses don’t belong in certain places

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“Euclidean zoning” hierarchy

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(1)single-family homes, (2)apartments and commercial property, (3)industrial

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Enabling legislation

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state passed laws that delegate the power to create zoning schemes

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Zoning commissions:

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compromised of citizens appointed by the mayor and advised by planning experts who have the function of recommending a comprehensive plan and a zoning ordinance to city council

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Zoning board of appeals:

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for filing grievances; ensures that broad zoning regulations do not operate inequality on particular parcels of land

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Variances and special exceptions are granted by

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zoning board of appeals

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The comprehensive plan

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a statement of the local gov’ts objectives and standards for development

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Nonconforming uses

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legal uses in place when an ordinance takes effect and that, except for already being in the district, would not be permitted in the district under newly enacted zoning ordinance

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Amortization clauses

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allow a nonconforming use to continue only for a specified maximum period of time, after which the use will not be permitted in the district

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Majority rule for amortization clauses

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are constitutional exercise of the police power so long as they’re reasonable

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Reasonableness test (majority rule amortization)

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do the benefits to the community more than offset losses to the affected landowner?

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Per se unconstitutional taking test (minority rule amortization)

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lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed unless it is a nuisance, use was abandoned, or was extinguished by eminent domain

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Subsequent land owners - variances

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run with the land

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“undue hardship” (variance)

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no effective use of the property can be made if variance denied

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Unconstitutional delegation of legislative power to zoning board

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legislature must make specific rules that govern zoning boards ability to grant special exceptions

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“Nor shall private property be taken for public use, w/o just compensation”

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5th amend. takings clause

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Kelo v. City of New London

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SCOTUS held that taking private land to build an office park was not an unconstitutional public use

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Berman v. Parker

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SCOTUS upheld a redevelopment plan in DC where land was sold or leased to private parties for redevelopment and low-cost housing.

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Miller v. Schoene

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Court concluded that the state had not exceeded its powers by deciding upon the destruction of one class of property without compensation in order to save another which was of greater value to the public.

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Hadacheck v. Sebastian

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Court upheld ruling that prohibited operation of brickyard since it was inconsistent with neighboring uses.

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Goldblatt v. Hempstead

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Court held that a use restriction may constitute a taking if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact upon the owner's use of the property.

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Pennsylvania Coal Co. v. Mahon

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Court said that a state statute that substantially furthers an important public policy may so frustrate distinct investment-backed expectations as to amount to a taking.

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Penn Central Transportation Company

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Penn Central Alleged NYC “took” their land by passing a regulation prohibiting Penn Central from building above landmark Grand Central Station (held not a taking)

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Penn Central test (3)

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(1)economic impact of the claimant, (2)extent which regulation has interfered w/ investment-backed expectations, (3)character of the gov’t action

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Riparian rights

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rights to use water in a stream or river

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Littoral rights

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Rights connected with ownership of land on a lake, sea or ocean

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Riparian doctrine is generally applied in

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eastern states where water is relatively abundant

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Prior appropriation doctrine is generally applied in

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western states where water scarce

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Natural flow theory

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riparian owner can take water so long as does not materially diminish quantity, quality, or velocity of watercourse

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Reasonable use theory (water)

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owners can make “reasonable use” of watercourse, so long as do not “unreasonably” interfere with lower owner’s use

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Fixtures

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a chattel that, due to its being affixed to or uniquely adapted to real property, has become part of the realty and has ceased being personal property

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Ownership of fixtures

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If chattel deemed to be a fixture, the conveyance of the real estate passes the fixture with it

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Tract index

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index of land organized by location of the land

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Grantor-Grantee Indicies

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index that record title conveyances from grantors to grantees

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Title insurance company

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insurance company that searches for defects in title and provides protection from any encumbrances on the title that were not found

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Bona fide purchaser

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takes without notice of the prior conveyance and purchases for value

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Shelter rule

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one who is a successor in interest to a BFP has the same rights as his grantor under the recording act

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If C has notice, but B did not, then C is treated as not having notice

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example of shelter rule

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3 types of priority statutes

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Notice, race, race-notice

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Main goals of real estate law

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promote fairness and facilitate alienability of land and reduce transaction costs

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Three types of notice for judging whether a subsequent purchaser is a BFP

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Actual notice, Constructive notice, inquiry notice

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Actual notice

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actual knowledge, learned from whatever source

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Constructive notice

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purchaser was on notice to check any documents duly recorded at the time of purchase

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Inquiry notice

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information suggesting a prior conveyance that is sufficient to warrant a further inquiry

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Spillover effects

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another name for externalities

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Intentional (knowing) private nuisance

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you knew that the behavior could affect someone and it was unreasonable under the circumstances

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Unintentional private nuisance

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acted without knowing it could affect someone

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Physical invasion of land

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trespass

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Real and significant impairment

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“law does not concern itself with trifles”

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Private nuisance factors

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(1)Financial loss observable physical harm or mental anguish, (2) harm of long duration, unremitting

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Unreasonableness factors to consider

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alternatives available to D, societal benefit from D’s use, P’s harm > D’s utility (efficiency), first in time

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Balancing of equities (nuisance)

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P’s harm if no injunction vs. society’s benefit from no injunction

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Permanent damage award

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damages the defendant caused in the past combined with the damages that will continue in the future (avoids multiple suits)

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Public nuisance

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“unreasonable interference with a right common to the general public”

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Standing requirement for public nuisance

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typically plaintiff is local govt. entity

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Lateral support of land in its natural state(absolute right of support)

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Excavator strictly liable if causes neighbor’s land to subside

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Lateral support of land with building on it

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excavator is strictly liable for subsidence if the land would have subsided in its natural state

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Excavator liable only if acted negligently when

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the land would not have subsided in natural state, but subsided due to presence of structure

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Liability for lateral support relating to removal of fluids uses an

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unreasonableness standard

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Ways that one landowner can affect another with surface water

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restricting flow that crosses land, divert flow onto other lands

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Surface water seen as a ______________ and any landowner can dike or drain it

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“common enemy”

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General warranty deed

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warrants against all defects in title

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Special warranty deed

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warrants only against those defects in title arising from the grantor’s own acts or omissions

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Quitclaim deed

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no warranties of title, conveys only the title that the grantor has, if any

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General warranty deeds includes these covenants

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covenants of seizin, covenant of rights to convey, covenant against encumbrances, covenant of quiet enjoyment, covenant of general warranty, covenant of further assurances

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Covenant of seizin

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grantor warrants that she owns the estate she purports to convey

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Covenant of right to convey

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grantor warrants that she has the power to convey the estate that she owns

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Covenant against encumbrances

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grantor warrants that there are no encumbrances

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Encumbrance

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non-freehold right or interest that decreases value or constrains use

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Covenant of quiet enjoyment

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grantor warrants that no third party will assert superior title and so disturb grantee in her possession and enjoyment of title

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Covenant of general warranty

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grantor agrees to pay legal costs and compensate grantee with respect to any loss that the grantee may sustain as a result of successful legal claims against her title

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Covenant of further assurances

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grantor agrees to sign documents as necessary to perfect title in grantee

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General warranty deed, present warranties

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warrants state of thing at time of closing

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Present warranties include

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covenant of seizin, covenant of right to convey, covenant against encumbrances

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Statute of limitations for present warranties

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begin to run at closing

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Future warranties include

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covenant of quiet enjoyment, covenant of general warranty, and covenant of future assurances

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Statute of limitations for future warranties

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begin to run at the time the covenant breached

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Escrow arrangement

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put the deed in escrow, giving the deed to escrow agent, who will turn the deed over to another party once a condition has been met.

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Delivery requirement

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grantor must manifest by words or actions an intent that the deed presently and irrevocably transfer an interest in the property

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The note (mortgages)

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document in which purchaser promises to pay lender the amount of the loan and interest

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The mortgage

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an interest in real property that serves as security for performance of an obligation

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If mortgagor (borrower) does not fulfill her obligations under the note, the mortgagee (lender) can

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sell the property and get paid back out of the proceeds

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Foreclosure sale

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when borrower defaults on note obligations and lender causes secured property to be sold

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Lender gets paid back remaining principal in a foreclosure sale but does not

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get remaining interest

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Any excess balance in a foreclosure sale (house sold for more than it was purchased)

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goes to the borrower

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If land has building on it but would have subsided in natural state due to excavation by neighbor

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neighbor will be held to a strict liability standard

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Cumulative zoning

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A higher use (single family homes) can be built is lower use areas (industrial zoning) but not the other way around

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Estancias Dallas Corp. v. Schultz

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Court argued that public’s benefit to continue allowing the use of the air conditioning was the housing the complex provided, but in Dallas there was no shortage of housing so it was not actually of great public benefit

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Boomer v. Atlantic Cement Co

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court held that permanent damages were better than injunction due to 300 jobs and $45 million investment > $185,000 in damages to value of property

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Spur Industries, Inc. v. Del E. Webb Development

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plaintiffs that move to a nuisance cannot enjoin the nuisance without indemnity

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4 types of servitudes

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Licenses, Profits, Easements, Covenants

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A profit (type of servitude)

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a use that includes the right to remove some product of nature

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Willard v. First Church of Christ, Scientist

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Case that held reservations in favor of third parties could be made via express easements

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Holbrook v. Taylor (road paving)

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improvements made to property on reliance of a license turn the license into an easement by estoppels

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Easement by implication (2 types)

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(1) implied prior use and (2) implied from necessity

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Othens v. Rosier (Dam case)

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Court held the use itself was permissive, not prescriptive in nature, as there was no adverse possession. Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription.

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Partial vertical privity

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successor holds a lesser estate carved out of a promissor’s/promisee’s estate

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Example of mutual interest test (horizontal privity)

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LL and TNT each have an interest in the same property (TNT/possessory, LL/future)

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Example of successive interest test

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Landlord grants an interest to tenant

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Shelly v. Kramer

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racial covenants violate equal protections clause of 14th amendment