Property: Unit 5

True

A nonpossessory right to use the land of another person

Encouraging the productive use of land

-Express easement
-Implied easement by prior existing use
-Easement by necessity
-Prescriptive easement
-Easement by estoppel

An express easement is voluntarily created by the servient owner, usually in a deed. It must satisfy the Statute of Frauds.

An express easement may arise either by grant, when the servient owner grants an easement to the dominant owner, or by reservation, when the dominant owner grants the servient land to the servient owner, but reserves an easement over that property.

1) Identify the parties, 2) describe the servient land and the dominant land (if any), 3) describe the exact location of the easement on the servient land, 4) state the purposes for which the easement may be used

Implied easement, easement by necessity, prescriptive easement, and easement by estoppel

Express easement

The land which is benefitted by the easement

The land which is burdened by the easement

An appurtenant easement allows a dominant owner to use an adjacent or nearby servient estate for a specific purpose. It "runs with the land," so it automatically transfers to new owners and is not tied to a specific person (ex: shared driveways, access to landlocked property, utility line placement, and beach access paths)

An easement in gross is a right to use another person's land for a specific purpose, attaching to a particular individual or entity rather than a neighboring property. It is commonly used for utility access (power lines, sewer) or personal land use (fishing, hunting). Unlike apputenant easements, this easement does not transfer and typically terminates upon the holder's death or sale of the property.

False, easements in gross only have a servient tenemant (the land burdened by the easement)

True

An affirmative easement grants the right to use another person's land for a specific purpose (ex: driving over a neighbor's driveway; laying utility lines)

A negative easement allows the dominant holder to prohibit the owner of the servient estate from performing an act on the servient land.

True

A license is an informal permission that allows the holder to use the land of another for a particular purpose.Licenses are not interests in land, and therefore can be revoked at any time.

Assess the intent of the parties

A profit is a right to enter the land of another to remove game, ravel, minerals, timber, or other natural resources. Today, most jx apply the same rules to easements as profits.

The easement remains attached to the land like any other encumbrance, unless the grantee is a bona fide purchaser.

Although easements in gross were not transferrable and didn't run with the land, the modern trend is to allow them to transfer unless the parties had a contrary intent. In some jx, an easement in gross is transferrable only if it serves a commercial purpose.

1) Undivided land is owned by one owner
2) The owner used part of the land in a way that was apparent, continuous, and reasonably necessary to benefit another part of the land
3) The owner subdivides the land and transfers one of the parcels to another owner
4) The new owner has an easement by implication based on that prior use

Reasonable necessity means that the easement benefits or conveniently serves the dominant estate, such as by allowing the landowner to avoid significant expense or labor.

True

An easement that arises when a developer conveys a lot in a subdivision by reference to a plat or subdivision map. The grantee would receive an implied easement over the streets and other common areas shown on the plat, unless the parties had an actual intent to the contrary.

1) Undivided land is owned by one owner
2) The owner subdivides the land and transfers one of the new parcels
3) The new parcel would be virtually useless without the benefit of the easement

True

True

False, the owner of the servient land is entitled to select the route for an easement by necessity, as long as it is reasonable

Most jx require that the claimant's use is open and notorious, continuous for the statutory period, and adverse and hostile. Most jx presume adversity, and some jx presume permission. Prescriptive easements are similar to adverse possession in that most jx have the same statutory time period for both, and tacking where there is privity between successive users satisfies the continuous requirement,

Exclusive

They have the same statutory time period and tacking is permitted where there is privity between successive users.

False, many jx allow public prescriptive easements

The public trust doctrine provides that navigable waters and certain related lands belong to the government as a trustee for the benefit of the public. Therefore, if the government sells such property to a private owner, their title is subject to the public's right to use the land for fishing, navigation, swimming, etc.

An easement by estoppel requires 1) a landowner allows (expressly or implicitly) another to use their land, creating a license, 2) the licensee relies in good faith on the license, usually by making physical improvements or by incurring significant costs, and 3) the licensor knows or should reasonably expect such reliance will occur.

True, but if a landowner granted a license, the licensee may be able to claim easement by estoppel.

Fairness, because it would be unjust to allow a landowner to revoke their permission after the user relief on it in good faith by substantially changing their position.

False, a license may arise by implication without any express agreement, including in a claim of easement by estoppel

The manner, frequency, and intensity of the use may change over time to accomodate the normal development of the dominant estate.

It is not permitted unless the servient owner consents.

Release
Estoppel
Merger
Condemnation
Misuse
Prescription
Abandonment
Expiration

False in most jx

An easement may be terminated by prescription if the servient owner blocks the use of the easement in an open and notorious, adverse and hostile, and continuous manner for the prescriptive period.

True, as with any other easement type

True, this is called expiration

If the servient land is condemned, the easement terminates and the easement holder is entitled to just compensation.

If the servient owner substantially changes their position in reasonable reliance on the holder's statement that the easement will not be used in the future, the easement terminates by estoppel.

If one person obtains title to both the easement and the servient land, then the easement terminates under the doctrine of merger.

In some jx, if the holder seriously misuses the easement, it may be ended through forfeiture.

An easement is terminated by release when the easement holder releases the easement to the servient owner by executing and delivering a writing that complies with the Statute of Frauds.

A conservation easement is a type of negative easement authorized by legislation in almost all jx. It restricts the development and use of the servient land in order to preserve open space, such as farm land, historical sites, or wild and undeveloped land. The servient owner usually conveys the easement to a land trust or conservation group in exchange for income or property tax benefits, and may continue to use the land as permitted by the easement.

Conservation easements are more cost-effective for non-profit groups that want to preserve land.

Equitable servitudes have less stringent requirements than real covenants

A real covenant is a promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors. The burden is the duty to perform the promise, and the right to enforce the promise is the benefit. Traditionally, six elements must be proven for the burden of the promise to bind the promisor's successors, and 4 of those elements are required for the benefit to run to the promisee's successors.

Complaince with the Statute of Frauds
Intent to bind successors
Touch and concern
Notice
Horizontal privity
Vertical privity

The covenant must be contained in a document that satisfies SOF

The original parties must intend to bind their successors, which is usually indicated by express language of the document, but may also be inferred.

A real covenant touches and concerns the land if 1) it is connected with the use and enjoyment of the land, 2) is so related to the land as to enhance its value and confer a benefit upon it, 3) restricts the use of one parcel, but enhances the value of the other, and 4) is a promise to do or refrain from doing a physical act upon the land

False, unless the monetary obligations are closely related to the occupancy of the land (ex: tenant obligation to pay rent; homeowner's obligation to pay HOA fees).

The promisor's successor must have actual, record, or inquiry notice of the covenant

Horizontal privity concerns the relationship between the original promisor and the promisee, and requires the transfer of some interest in land beyond the covenant itself. In most jx, this is met through either 1) mutual interests, where the original parties have simultaneous interests in the land, or 2) successive interests, a grantor-grantee relationship where one party transferred the land to the other. However, an increasing number of syayes have abolished the horizontal privity requirement entirely.

Vertical privity conccerns the relationship between an original party to the covenant and their successor in interest. The modern trend is to abandon this requirement altogether. However, states that retain this requirement apply different standards to the burden and the benefit. Under burden, the successor must take the entire estate the original promisor held. Under the benefit, the successor need only take some estate carved from the promisee's interest.

Injunction

Although equitable servitudes normally require a writing to be enforced, the common plan exception may apply when a servitude was not included in a deed. Under a common plan, a developer intended to impose a uniform restriction on a subdivision, making all lots burdened by the restriction even if they are missing from some of the deeds in that subdivision. There is often constructive notice of the common plan.

Damages

Remedy: Real covenants get damages, and equitable servitudes get injunctions

Zoning ordinances and nusicance law

An improper interference with a right to the common public

The plaintiff in a private nuisance case must establish that the defendant's conduct resulted in an intentional, nontrespassory, unreasonable, and substantial interference with the use and enjoyment of the plaintiff's land.

The defendan's conduct is intentional if they act for the purpoe of causing the harm or know that the harm is resulting or is substantially certain to result from their conduct

The interference must not involve any physical entry onto the land of another.

Noise, vibration, light, odors

Some jx use the gravity of the harm test, finding conduct unreasonable if it causes substantial harm, reglardless of the social utility of the conduct. Many states use the Restatement, finding conduct unreasonable if the gravity of the harm outweighs the utility of the conduct.

The defendant's conduct is unreasonable if the gravity of the harm outweighs the utility of the conduct.

There must be a real and appreciable invasion of the plaintiff's interests, involving more than slight inconvenience or petty annoyance.

The defendant's conduct must interfere with the use and enjoyment of the land, such as causing physical damage to the property of personal injury to occupants.

In most jx, particulate matter does not qualify for a trespass, and only qualifies as a nuisance. In some jx, particulate matter may constitute a nuisance.

Private nuisance

False. In most jx, the mere appearance of a thing does not make it a nuisance.

A law is unconstitutional only if it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare

It is used to evaluate the constitutionality of a land use regulation, such as a zoning ordinance.

When the law or ordinance discriminates against a suspect class, such as one based on race, or impairs a fundamental right, such as freedom of religion.

The strict scrutiny test

A zoning law could be unconstitutional as applied to an individual property, particularly where the zoning would not promote the health, safety, or welfare of the public.

1) The text of the ordinance, and 2) maps that implement the ordinance

Consult the city's zoning ordinance. First, look at the text of the ordinance to determine where that business type is allowed in the city. Then, review the zoning maps to locate the zones and advise the client accordingly.

It makes zoning a two-step process. First, the city or county needs to adopt a comprehensive plan that sets forth its general planning goals. Then, it needs to enact a specific ordinance to implement that plan.

In some jx, a zoning ordinance is valid only if it is consistent with the city or county's pre-existing plan.

In most jx, a zoning ordinance does not need a separate plan before it is adopted. The ordinance itself is the plan.

Most prior nonconforming uses are allowed to continue, because zoning regulates future development, not existing uses.

It is a use that does not conform to a new zoning ordinance.

Because of a concern that the "taking" of such property would violate the 5th Amendment

True

True

True

-Abandonment
-Amoritization
-Destriction of the structure housing the use
-The use constitutes a nuisance
-Eminent domain

A government action that takes private property for public use upon payment of just compensation to the owner.

Basic principles of contract construction and interpretation are used to interpret the paties' intent as expressed in the easement. The manner, frequency, and intensity of the easement may evolve with technological advances, but only within the purposes for which the easement was created.

An easement may terminate by abandonment where there is 1) nonuse and 2) the owner's actions manifest either a present intent to relinquish the easement, or a purpose inconsistent with its future existence.

Failed easements are usually just licenses, which are revocable at any time.

-Unclean hands: The person seeking enforcement is violating a similar restriction on their own land
-A benefitted party acquiesced in a violation of the servitude by one burdened party
-Estoppel: A benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived
-Laches: The benefitted party failed to bring suit against the violator within a reasonable time

A conveyance by a developer that imposes a servitude on the land conveyed to implement a general plan creates an implied reciprocal servitude burdening all of the developer's remaining land included in the plan, if injustice can be avoided only by implying the equitable servitude.

It is used to drop the intent and writing requirements

True, it just doesn't require the writing and intent requirements

-Unreasonableness
-Abandonment
-Changed conditions

A defendant may raise the unreasonable defense in response to a claim of a covenant or equitable servitude when the restrcition burdening the affected properties outweighs the benefits of the restirction

A defendant may raise the abandonment defense in response to a claim of a covenant or equitable servitude when there is a reasonable belief that the restriction in question has been abandoned.

A defendant may raise the changed conditions defense in response to a claim of a covenant or equitable servitude when the neighborhood has changed so much that enforcement of the restriction would be inequitable

A covenant or sevritude is valid unless it is illegal or unconstitutional or violates public policy. Public policy is violated of it is: arbitrary or spiteful, unreasonably burdens a fundamental constitutional right, imposes an unreasonable restraint on alienation, imposes an unreasonable restraint on trade or competition, or is unconscionable.

Either a statement of objectives and standards for future development, or an assortment of vague sentences.

A typical plan will create areas for different types of industrial, commercial, recreation or open space, and residential uses. The districts may list conditional or special uses that are permitted if certain conditions are met.

A policy that designates a specific area for a particular use only, such as commercial activities.

The 14th Amendment protects persons from deprivation of life, liberty, or property, without due process of law.

Land use and other regulations are subject to rational basis review, unless the law discriminates against a suspect class (ex: race), or impairs a fundamental right (ex: feedom of religion), in which case the strict scrutiny test is applied.

Race, national origin, and religion are included.
Sexual orientation or gender identity are not included (these are quasi suspect and subject to intermediate standard)

For strict scrutiny, the plaintiff must show that the action 1) affects protected class disproportionately, and 2) was intended to discriminate against protected class. Intent is shown by impact of the action, historical background, departure from normal procedure, substantive departures, discrimintaory contemporary statements by decisionmakers.

-Separation of uses is desirable
-Single-family residence is the most important use
-Low-density development is desireable
-residents will travel by private automobiles
-Development will proceed on a lot-by-lot basis
-Once zoning is established, there will be little or no need to change it in the future

True