Property Flash Cards 7

Front 1

RECAP on EASEMENTS

Back 1

EASEMENT RECAP

Front 2

What is an Easement

Back 2

Right to do something on somebody else’s land

Right of Way

Front 3

Examples of an Easement

Back 3

Right to go fishing on someone else’s land
Right to use a pathway through someone’s property
Promise not to interfere with water flow (negative)
Promise not to build (negative)

Front 4

Covenants

Back 4

Promise to do something on your own land

Front 5

Covenants are often _____(1)_______, but ______(2) ________.

Back 5

(1) Zoning related

(2) Privately contracted

Front 6

Examples of Covenants

Back 6

ii. Promise to build a fence on my own land
iii. Promise to keep my land as residential

Front 7

Does Easement Exist

Back 7

Three Types:
(1) Negative
(2) Implied
(3) Express

Front 8

Implied Easement means this

Back 8

No Writing

Front 9

Types of Implied Easements

Back 9

1. Constructive Trust through Unjust Enrichment
2. Easement by Estoppel
3. Easement by Necessity
4. Easement by Prior Use
5. Prescriptive Easement

Front 10

Express Easement

Need to EVALUATE this

Back 10

Burdened and Benefited Sides

Front 11

Two Types of Express Easements

Back 11

Appurtenant

In Gross

Front 12

When you have an Appurtenant Easement, need to think of the both the ______(1)_______ and the _______(2)_______.

Back 12

(1) Dominant Estate (Benefited)

(2) Burdened Estate (Servient)

Front 13

The key for determining appurtenant easements (run with the land) is ensuring this.

Back 13

That the party who next purchases the land has notice of the burden they are inheriting

Front 14

Is the Easement Appurtenant?

Burdened v. Benefited

Back 14

Burdened Side
1. Is it in writing?
2. Is there intent to run?
3. Is there notice?

Benefited Side
2. Is there intent to run? (really a formality)

Front 15

How to Determine Grantor's Intent to Run

2 Questions

Back 15

Does the burden run to servient estate holders?
Does the benefit run just to the individual, or is it to be part of the land?

Front 16

Notice Requirement for Easement

Back 16

No requirement to give notice, just a body of law which protects you if you do record.

Front 17

Is there a requirement to record your easement?

Back 17

NOPE!! Just protection

Front 18

There No legal obligation to record (and give notice) of burdens on your land (Easements), just a body of law which protects you if you do record it.

What type of protection?

Back 18

When you sell the land, you can ensure that the purchasing party can't make a claim for failure of notice because you gave them constructive notice!

Front 19

3 Types of Notice

Back 19

1. Actual
2. Inquiry
3. Record

Front 20

THROW OUT OTHER STUFF ABOUT SCOPE OF EASEMENT

Back 20

THROW IT OUT

Front 21

Rules on the scope of an easement apply regardless of

Back 21

Whether the easement is

(1) Implied
(2) Express
(3) Negative

Front 22

Scope of an Easement

Back 22

(1.) The owner of an easement may maintain, repair and improve the way in a manner reasonably calculated to promote purposes for which the easement was created provided, however, that:
A) such maintenance, repair, or improvement is confined to the area within the exterior borders of the way as it was created
B) that such maintenance, repair, or improvement will not cause an undue hardship upon the servient estate
AND
C) that such maintenance, repair, or improvement won't cause an unwarranted interference with the independent rights of others who have similar right of use.

Front 23

Scope of an Easement: In General

The owner of an easement may _____(1)_____ the right of way in a manner reasonably calculated to ___________(2)_____.

Back 23

(1) Maintain, Repair and Improve

(2) Promote purposes for which the easement was created provided.

Front 24

Restrictions on Maintenance, Repair, or Improvements to an Easement

Back 24

(1) Must be confined to area within borders of the easement
(2) Must not cause an undue hardship on the servient estate
(3) Must not cause an unwarranted interference with the independent rights of others who have similar right of use.

Front 25

Realize that the party seeking to perform maintenance, repair, or improvement to an easement is almost always the owner of the _____________________.

Back 25

(1) Dominant Estate

Front 26

Physical Parameters of an Easement

Back 26

Freeze the parameters at the time the easement was granted or found to be implied

Front 27

General Rule for Physical Parameters of an Easement

Back 27

Whatever was assigned at time is physical parameters.

Front 28

Although the general rule for physical parameters of an easement is whatever was assigned at the time, you can argue for this

Back 28

EXPANSION: Since appurtenant easements can be subdivided, it only makes sense to allow the width to grow.

Front 29

EXPANSION ONLY REALLY MAKES SENSE FOR THESE TYPE OF EASEMENTS

Back 29

APPURTENANT: because they can be subdivided

Front 30

Uses permitted for an appurtenant easement

Back 30

Interpret easements broadly, but unreasonable additional burdens are not protected

Front 31

Use of easements (Not Scope) are interpreted broadly, but this is not protected.

Back 31

Unreasonable Additional Burdens (Surcharges on the Estate)

Front 32

Divisibility of Easements

Back 32

(1.) Depends on grantor’s intent
(i.) Appurtenant:
(A.) Presumed to be divisible
(2.) In Gross:
(A.) Divisible if owned exclusively
(B.) If non-exclusive, land-owner gets to say whether you can share it or not

Front 33

The Question of the divisibility of easements all comes down to this, whether is appurtenant or in gross

Back 33

Grantor's Intent: If the intent is not for it to be divisible, doesn't matter what presumption is

Front 34

Divisibility of Easements

Appurtenant

Back 34

Presumed to be Divisible

Unless grantor says no

Front 35

Divisibility of Easements

In Gross

Back 35

(A.) Divisible if owned exclusively (unless grantor says no)
(B.) If non-exclusive, land-owner gets to say whether you can share it or not

Front 36

In regards to use of an easements, _____________________ are not covered.

Back 36

Surcharges on the estate

Front 37

Is the use a surcharge on the estate?

Key Question:

Back 37

Does the controversial use exceed scope grantors intent?

Front 38

Balance of Interest in Surcharges on the Estate

Back 38

(1) Need to balance
(A.) The interests of easement holder in free development
v.
(B.) Interest of servient estate in security and protection from undue burden