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44 Cards in this Set
- Front
- Back
What is an easement?
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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.
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What is an affirmative easement?
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The right to do something on the servient land.
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What is a negative easement?
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The right to prevent the servient landowner from doing something that would otherwise be permissible
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What are the categories of negative easements?
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Generally only 4: LASS (LIGHT, AIR, SUPPORT, STREAM water from artificial flow); minority, including California, adds SCENIC VIEW
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How can a negative easement be created?
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Expressly, by a writing signed by the grantor, only.
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What is an appurtenant easement?
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Benefits its holder in his physical use or enjoyment of his property; IT TAKES TWO - dominant and servient property
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What is an easement in gross?
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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
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How is an easement appurtenant transferred?
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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
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How is an easement in gross transferred?
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It can't be, unless it is for commercial purposes
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How is an affirmative easement created?
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PING (PRESCRIPTION, IMPLICATION, NECESSITY, GRANT)
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What is an easement by grant?
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An easement to last more than one year, in a writing called the deed of easement
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What is an easement by implication?
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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
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What is an easement by necessity?
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An easement that is implied because of necessity/public policy - e.g., landlocked parcel.
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What is an easement by prescription?
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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).
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How is the scope of the easement determined?
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By the terms of the grant or the conditions that created it.
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How is an easement terminated?
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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)
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What is a license?
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Privilege to enter another's land for some delineated purpose - e.g., ticket, promise made by neighbors talking by the fence (oral easement)
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Do you need a writing to make a license?
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No, licenses aren't subject to the Statute of Frauds
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How is a license terminated?
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Licenses are freely revocable at the will of the licensor, unless estoppel applies to bar revocation
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When does estoppel bar revocation of a license?
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Only when licensee has invested substantial money/labor/both in reasonable reliance on the license's continuation.
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What is a profit?
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The right to enter servient land and take soil or a substance from the soil (e.g., minerals, timber, oil)
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How are the rules of profits determined?
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Profits share all the rules of easements
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What is a covenant?
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A promise to do or not to do something related to the land.
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How is a covenant different from an easement?
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An easement is the grant of a property interest; a covenant is a contractual limitation or promise regarding land.
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What is a restrictive covenant?
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A promise to refrain from doing something related to land (I promise not to build for commercial purposes)
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What is an affirmative covenant?
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A promise to do something related to land (I promise to plant 37 trees)
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How is a covenant different from an equitable servitude?
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The remedy for breach of covenant is monetary damages; the remedy for breach of equitable servitude is an injunction
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How do analyze a covenant question?
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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?
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Elements necessary for a burden to run with the land?
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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)
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Elements necessary for a benefit to run with the land (and B to have standing to make the claim)
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WITV (original promise in WRITING, INTENT by original parties, TOUCH and concern the land, VERTICAL privity)
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What is an equitable servitude?
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A promise that equity will enforce against successors
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How is an equitable servitude created?
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WITNES (WRITING - generally but not always, INTENT, TOUCH and concern, NOTICE to successors of the burdened land) - privity is not required
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What is a general common scheme?
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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
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What types of notice of an equitable servitude may be potentially imputed to a D?
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AIR (ACTUAL notice, INQUIRY notice - the neighborhood conforms to the common restriction, RECORD NOTICE - imputed based on public documents)
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What are the parameters of record notice?
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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.
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What is a defense against the enforcement of an equitable servitude?
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Changed conditions - so pervasive that the entire community is altered <wording not cq>
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How does a possessor's state of mind affect adverse possession?
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It is irrelevant
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When can tacking help with adverse possession?
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When there is privity among adverse possessors - any non-hostile nexus
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When is tacking not allowed with adverse possession?
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When there has been an ouster
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How does a landowner's disability affect adverse possession?
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The statute of limitations will not run against a true owner who is afflicted by a disability at the start of the adverse possession
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What are common disabilities that can affect adverse possession?
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Insanity, infancy, imprisonment
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Would leasing someone's property count as 'actual' use toward adverse possession?
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Yes, because that's the kind of use a true owner would make
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When does possession of part of a tract suffice for adverse possession?
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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.
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When does possession of part of a tract suffice for adverse possession?
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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.
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