Real Property#3, Non-Possessory Interests In Land

Front 1

Easement

Back 1

right of person(s) to go onto land of another for limited use

Front 2

Analyzing easement issues

Back 2

Determine:
1. type
2. scope
3. termination?

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Classifications of easements

Back 3

appurtenant
in gross

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Easement appurtenant

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involves 2 parcels--dominant + tenement estates. Dominant tenement is land benefitted by easement. Servient tenement is land burdened.

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Easement in gross

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intended to benefit the owner or possessor of easement personally rather than in connection w/ any land the holder owns.

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When is purchaser of the servient estate bound by an easement?

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Only when he has notice--whether actual, constructive or inquiry

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Easements creation through

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1. express provision in will or deed
2. by implication
3, by necessity
4. by prescription
5. by estoppel
6, eminent domain

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Easements by implication arise when . . .

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1. Both pieces of prop formerly under common ownership
2. While common ownership, the land subsequently kept was used by owner for the benefit of land transferred
3. use was apparent
5. use was continuous
6. easement was REASONABLY necessary

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Easement by necessity

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Easement whereby enjoyment of one parcel of land STRICTLY REQUIRES use of another. Requires
1. Common ownership of dominant & serviant estates in the past
2. Easement lasts only as long as necessity.

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Requirements for easement by implication

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1. IMMEDIATELY before severance, one part of the land is being used for the benefit of an other part (a quasi-easement)
2. existing use is apparent (discerable by reasonable inspection)
3. existing use is continuous
4. existing use is either reasonably or strictly necessary to the enjoyment of the quasi-dominant track.

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Easement by prescription must be

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1. hostile + adverse (as distinct from permissive)
2. open + notorious
3. continuous
4. for statutory period

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What if statutory period for the presecriptive easement is interrupted (e.g. court action, obstruction)

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It must start over

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Implied dedication

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Similar to prescriptive easement, but user is general public. If owner allows general public access for the statutory period, he can't thereafter prohibit the use.

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Maintenance of easement

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Owner of dominant estate has the right + duty to maintain the easement + is not liable for damages resulting from maintenance unless the maintenance exceeds the scope or is performed neg.

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Can owner of servient estate make changes or improvements to the easement

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Yes as long as the intended changes do not interfere w/ the reasonable use + enjoyment of the easement.

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Scope of easement

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can reasonably changes in circumstances but not beyond activities that were reasonably contemplated when the easement was creasted.

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Quasi easement

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"Easement" over grantor's own land before dominant & serviant estates are divided & one of them becomes owned by the grantee

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How easement terminated

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1. express in instrument
2. release
3. merger
4. abandonment
5. adverse use
6. destruction or condemnation of the servient tenement
7. prescription
8. estoppel

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Terminating easement by merger

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when fee simple title to both the servient + dominant tenements comes into the hands of same person

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Terminating easement by condemnation

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condemnation of the servient estate will extinguish the nonpossessory interest. Holder entitled to compensation.

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Terminating easement by abandonment

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Must be clear showing dominant tenant intends to abandon sue. Must show non-use + some conduct showing intent

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Profit

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right of one person to go onto land of another + take some part of land or product of the land--(easement +). Like easement, it may be appurtenant or in gross

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Creation of profit

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Expressly or by prescription--no such thing as profit by implication or necessity.

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License

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personal privilege to come onto land in possession of another w/o being a trespasser--not an interest in land--not considered an interest in land--need not be in writing

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types of licenses

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1. license or mere license (revocable)
2. license coupled w/ an interest (irrevocable)
3. executed license (irrevocable)

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License coupled w/ an interest

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license based on owning the personal property on the land of another, and the license is incidental to the property ownership

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Executed licsense

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licensee detrimentally relied on the grant of a license by investing in the property such that termination of the license would be inequitable

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How is a license extinguished?

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1. Express notice
2. Sale, lease or mortgage of the land by the licensor
3. Actionof trespass against the licensee
4. Death or insanity of either party
5. Attempted assignment (unless parties intended the license be assignable)
6. Obstruction by the licensor
7. Expiration of time period set for the license
8. Abandonment of the licensee

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Types of profits

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Exclusive--holder only permitted to take from land
Non-exclusive--shares w/ landowner or anyone else landownder grants it to

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Modifications of profits

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No assignment or division of profit if it violates the parties' intent or unduly burdens the servient estate--i.e. unreasonable

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Appurtenant profits

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Profit due to downship of a particular tract of land

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Profit in gross

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One tract of land involved + individual is given the right to remove something w/o regard to property ownership

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Covenant running with the land

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Promise related to land that is enforceable by and/or against subsequent holder of the land.

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Types

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Affirmative
Negative

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Requirements for covenant to run w/ the land

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1. Writing (SoF)
2. Touch + concern land
3. Intention (to bind successors)
4. Privity of estate between original contracting parties
5. NOTE: the perspective buyer of the burdened land must have notice (actual, constructive or inquiry) before buying.
5. generally enforced through actions at law (but if inadequate, P can proceed in equity--i.e. injunctive relief.

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Define touch and concern land

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effect of covenant is to make land either more or less valuable to coventor and coventee

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Vertical privity

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Relationship between an original party to a running covenant + a successor in interest to the original party. To demonstrate P must show the successor "stepped into the shoes of" the orginal party by taking the entire interest.

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Horizontal privity: benefit v burden

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Traditionally horizontal privity was required for both the benefit + burden to run. Modern courts--horizontal privity is not necessary for the benefit to run.

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Horizontal privity

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Relationship which existed between original grantor + grantee--requirement satisfied w/ conveyance of property that includes covenant

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Equitable servitudes

Back 40

promise by holder of land to conduct a stated activity (or a promise not to do so) which is binding on successors

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Equitable servitude--requirements

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1. Writing-SoF--(to create--to run only notice is required)
2, Intention to bind subsequent purchases
3, Benefit & burden must touch & concern the land
3. Notice
4. Privity not required

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Difference between equitable servitude and real covenant

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1. Privity
2. Difference in remedy for breach

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Equitable servitude--explain notice requirement

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transferee must take the land w/ either actual or constructive notice of the existence of the servitude. An equitable servitude cannot be enforced against a BFP w/ no notice

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Define 3 types of notice

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1. Actual--knowlege of covenant in current or prior deed
2. Record/Constructive Notice--covenant appears in chain of title
3. Inquiry/Implied notice--physical appearance of neighborhood suggest common plan or restriction.

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Examples of when equity court may refuse to enforce equitable servitude against BFPs who acquire land after original parties

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Purpose is contrary to public policy
When granting would do more harm than good
When the granting would be futile
When P is guilty of laches or unclean hands
Abandonment
Estoppel
Merger
Eminent domain

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Implied reciprocal servitude

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Special subcategory of equitable servitude which bind subsequent property owners to a covenant not in deed but in deed from same grantor usually in the same subdivision.

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Requirements of implied reciprocal servitude

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1. Negative
2. Common plan or scheme
3. assurances by developer that other property owners will face same restrictions
4. Notice

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Common development schemes when landowner put restrictions in most of but not all deeds. Collateral document rule allows restrictions to be enforced against the owners whose deeds lack the restrictions when:

Back 48

1. common development scheme
2. notice required (constructive notice of deeds of adjacent props)

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Extinguishment of equitable servitudes

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Same as easements + profits--release, merger, abandonment, etc.
Also:
CHANGED NEIGHBORHOOD CONDITIONS--

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Will equitable servitudes become invalidated by zoning restricitons?

Back 50

No unless changed neighborhood conditions

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Remedies for violation of equitable servitudes

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injunctions or specific performance

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States enact zoning laws under
which Constitutional power

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10th A police power

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Due process & zoning

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Procedural due process may be violated if zoning ordinance enacted w/o notice + opportunity to be heard

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Equal Protection Clause + zoning

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similarly situated landowners must be treated similarly
Rational basis test usually applied
Strict scrutiny test if zoning ordinance operates against a suspect class or violates a fundamental right.

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5th Amendment + zoning

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5th Amendment prohibits state from taking prop w/o just compensation. If zoning causes a taking, the government must either cease enforcement or pay just compensation.

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Eminent domain and taking

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Taking occurs when government takes title to land, invades, regulates, excavates or restricts use so as to eliminate all economically beneficial use

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Eminent domain + public benefit

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balancing test to balance the landowner's loss against the public interest

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Eminent domain + partial taking

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Land owner entitled to recover damages for the harm to his remaining prop.

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Does easement which lasts less than a year need to be in writing (i.e. walk across my property for 9 months)?

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Yes, unlike leases of less than a yr. If easement fails, license results.

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#2?--Analyzing real covenants or covenants running with the land

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Are you looking at a subsequnet holder of the benefit or the burden? If burdened, then value of land lessoned and asking if burden runs. If benefitted, value of land greater and asking if benefit runs.

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How will a real covenant terminate?

Back 61

1. Merger
2, Eminent domain
3. Fixed time per party's agreement