Property - Servitudes

Front 1

What is an easement?

Back 1

The grant of a nonpossessory property interest that entitles its holder to some form of use/enjoyment of another's land, called the servient tenement.

Front 2

What is an affirmative easement?

Back 2

The right to do something on the servient land.

Front 3

What is a negative easement?

Back 3

The right to prevent the servient landowner from doing something that would otherwise be permissible

Front 4

What are the categories of negative easements?

Back 4

Generally only 4: LASS (LIGHT, AIR, SUPPORT, STREAM water from artificial flow); minority, including California, adds SCENIC VIEW

Front 5

How can a negative easement be created?

Back 5

Expressly, by a writing signed by the grantor, only.

Front 6

What is an appurtenant easement?

Back 6

Benefits its holder in his physical use or enjoyment of his property; IT TAKES TWO - dominant and servient property

Front 7

What is an easement in gross?

Back 7

Confers upon holder only some personal or pecuniary advantage that is not related to his use or enjoyment of the land; ONLY 1 - servient parcel is involved

Front 8

How is an easement appurtenant transferred?

Back 8

It passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance. It passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice

Front 9

How is an easement in gross transferred?

Back 9

It can't be, unless it is for commercial purposes

Front 10

How is an affirmative easement created?

Back 10

PING (PRESCRIPTION, IMPLICATION, NECESSITY, GRANT)

Front 11

What is an easement by grant?

Back 11

An easement to last more than one year, in a writing called the deed of easement

Front 12

What is an easement by implication?

Back 12

An easement whose previous use was apparent and which parties expected would survive division because it is reasonably necessary to the dominant land's use and enjoyment

Front 13

What is an easement by necessity?

Back 13

An easement that is implied because of necessity/public policy - e.g., landlocked parcel.

Front 14

What is an easement by prescription?

Back 14

An easement acquired by satisfying the elements of adverse possession (COAH - CONTINUOUS use for statutory period, OPEN & notorious, ACTUAL use; HOSTILE use - w/o servient parcel owner's consent).

Front 15

How is the scope of the easement determined?

Back 15

By the terms of the grant or the conditions that created it.

Front 16

How is an easement terminated?

Back 16

END CRAMP: (ESTOPPEL- servient owner materially changes position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced; NECESSITY - easements by necessity expire when the need ends (unless formalized in an express grant); DESTRUCTION of servient land, other than through willful conduct of the servient owner; CONDEMNATION of the servient estate; written RELEASE given by easement holder to servient owner; ABANDONMENT demonstrated by physical action (not mere nonuse); MERGER doctrine (aka unity of ownership); PRESCRIPTION - servient owner may extinguish easement by adverse possession - COAH)

Front 17

What is a license?

Back 17

Privilege to enter another's land for some delineated purpose - e.g., ticket, promise made by neighbors talking by the fence (oral easement)

Front 18

Do you need a writing to make a license?

Back 18

No, licenses aren't subject to the Statute of Frauds

Front 19

How is a license terminated?

Back 19

Licenses are freely revocable at the will of the licensor, unless estoppel applies to bar revocation

Front 20

When does estoppel bar revocation of a license?

Back 20

Only when licensee has invested substantial money/labor/both in reasonable reliance on the license's continuation.

Front 21

What is a profit?

Back 21

The right to enter servient land and take soil or a substance from the soil (e.g., minerals, timber, oil)

Front 22

How are the rules of profits determined?

Back 22

Profits share all the rules of easements

Front 23

What is a covenant?

Back 23

A promise to do or not to do something related to the land.

Front 24

How is a covenant different from an easement?

Back 24

An easement is the grant of a property interest; a covenant is a contractual limitation or promise regarding land.

Front 25

What is a restrictive covenant?

Back 25

A promise to refrain from doing something related to land (I promise not to build for commercial purposes)

Front 26

What is an affirmative covenant?

Back 26

A promise to do something related to land (I promise to plant 37 trees)

Front 27

How is a covenant different from an equitable servitude?

Back 27

The remedy for breach of covenant is monetary damages; the remedy for breach of equitable servitude is an injunction

Front 28

How do analyze a covenant question?

Back 28

Two questions: does the burden of A's promise to B run from A to A-1 (WITHVN); does the benefit of A's promise to B run from B to B-1?

Front 29

Elements necessary for a burden to run with the land?

Back 29

WITHVN (original promise in WRITING, INTENT (courts are generous), TOUCH and concern the land - affect parties as landowners; HORIZONTAL privity between originally promising parties - grantor/grantee, landlord/lessee, mortgagor/mortgagee; VERTICAL privity - some non-hostile nexus between A and A-1, such as contract, devise, descent (absent if A-1 acquired through adverse possession), A-1 had NOTICE of the covenant when she took)

Front 30

Elements necessary for a benefit to run with the land (and B to have standing to make the claim)

Back 30

WITV (original promise in WRITING, INTENT by original parties, TOUCH and concern the land, VERTICAL privity)

Front 31

What is an equitable servitude?

Back 31

A promise that equity will enforce against successors

Front 32

How is an equitable servitude created?

Back 32

WITNES (WRITING - generally but not always, INTENT, TOUCH and concern, NOTICE to successors of the burdened land) - privity is not required

Front 33

What is a general common scheme?

Back 33

A situation that creates an implied equitable servitude - when sales began, subdivider had a general scheme of residential development that included D's lot; D had notice (AIR) of the promise contained in the prior deeds

Front 34

What types of notice of an equitable servitude may be potentially imputed to a D?

Back 34

AIR (ACTUAL notice, INQUIRY notice - the neighborhood conforms to the common restriction, RECORD NOTICE - imputed based on public documents)

Front 35

What are the parameters of record notice?

Back 35

Some courts hold a subsequent buyer on record notice of the contents of prior deeds transferred to others by a common grantor. Better view (less burdensome to D's title searcher) is that subsequent buyer does not have record notice of the contents of those deeds.

Front 36

What is a defense against the enforcement of an equitable servitude?

Back 36

Changed conditions - so pervasive that the entire community is altered <wording not cq>

Front 37

How does a possessor's state of mind affect adverse possession?

Back 37

It is irrelevant

Front 38

When can tacking help with adverse possession?

Back 38

When there is privity among adverse possessors - any non-hostile nexus

Front 39

When is tacking not allowed with adverse possession?

Back 39

When there has been an ouster

Front 40

How does a landowner's disability affect adverse possession?

Back 40

The statute of limitations will not run against a true owner who is afflicted by a disability at the start of the adverse possession

Front 41

What are common disabilities that can affect adverse possession?

Back 41

Insanity, infancy, imprisonment

Front 42

Would leasing someone's property count as 'actual' use toward adverse possession?

Back 42

Yes, because that's the kind of use a true owner would make

Front 43

When does possession of part of a tract suffice for adverse possession?

Back 43

Possession of part of a unitary tract is sufficient adverse possession of the whole if there is a reasonable proportion between the part actually possessed and the whole, and if the possessor has color of title.

Front 44

When does possession of part of a tract suffice for adverse possession?

Back 44

Possession of part of a unitary tract is sufficient adverse possession of the whole if there is a reasonable proportion between the part actually possessed and the whole, and if the possessor has color of title.