Cloned from: property law

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a revocable easement. Revocable b/c it’s not compliance w/ statute of fraud.

easement appertinant:
gives right to whomever owns a certain parcel of land the benefit of the easement on another parcel.
easement in gross:
gives right to an individual to the benefit of the easement on another parcel w/o regard to property ownership. harder to figure out the scope of this easement.

may not reserve an easement in a third party in most jurisdictions. A can’t create a deed for B with an easement reserved for C. (need separate deed).

provision in a deed creating some new servitude which did not exist before as an independent interest. ie preserve some interest (such as reserving an easement across the portion of land sold for your own transport to the main road.)  the exact location isn’t critical, it’s the purpose. So no statute of frauds problem.


a provision in a deed that excludes from the grant some preexisting servitude on the land. (ie: convey land with the exception of the land on which the road lies). can create statute of frauds problems if the exact location isn’t well described in the deed.

revocable oral or written permission given by occupant allowing licensee to do some act that otherwise would be trespass. When an easement doesn’t satisfy statute of frauds, you have a license.

rules of construction:
construe ambiguous deeds in light most favorable to the person who did not author the deed  or against grantor. depends on state law.
easement by necessity:
exception to statute of frauds in which an easement can be created orally when the neighbor has historical use of the road and no other outlet. Basically an irrevocable license.

irrevocable license:
created by estoppel. It would be unfair to dominant estate to revoke the license
easement by estoppel:
unconscionable injury resulting from denying enforcement of the oral agreement after one party has been able to do something in reasonable reliance on the agreement. (ie building the house). What started out as an act of accommodation is taken advantage of by the other neighbor and made permanent.

easement by prescription:
basically adverse possession of an easement. very open, very notoriously, continuously asserted a right to this use of another’s land. No exclusivity req’d b/c easements are non exclusive rights in land.  But must be open and notorious enough that real owner could have reasonably discerned the use and attempted to stop or give permission for it (reassert exclusive right).

easement by implication:
a necessary use of another’s property that is apparent to the servient estate. This is created when the original serv and dom owners intended there to be an easement but never recorded one under stt of frauds. Has to be obvious/common sense that an easement would be necessary. But the standard is not strict necessity. Policy: strongly against isolated parcels, so this system allows land to be used.

lost grant theory of prescription:
historically proscriptive easements have diff origin than adverse possession. It’s older (Roman law) and based on idea of the existence of an ancient grant, the exact terms of which have been lost to memory.

quasi easement:
when one utilizes part of his and for the benefit of another part. It’s like an easement in your own land. This becomes a reservation when part of the land is conveyed and the quasi easement is retained.

easement appurtenant
is one that benefits the dominant estate and "runs with the land," an easement appurtenant generally transfers automatically when the dominant estate is transferred.

easement in gross
benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use or a commercial use. Commercial easements are freely transferable if the burden on servient estate is the same. policy: easement in gross for non commercial purposes is a relationship with an individual who comes on your property. With a commercial entity it’s anybody related to the commercial entity coming on your property so one owner is like another.

negative easement:
the right of the dominant owner to stop the servient owner from doing something on the servient land. You cannot get a negative easement by prescription.

conservation easements:
a species of negative easement or covenant that preserves scenic or historic areas from certain development activities.

uniform enviro covenants act:
limits use of property to facilitate redevelopment. It’s a brownfield site turned to some other use (parking lot, factory, park, etc). Property is restricted in such a way that it is put to limited and safe uses. conditions must be committed to public memory to prevent abuse by future landowners.

equitable servitudes:
a promise that runs with the estate or person. Recognized and enforceable in equity courts and provide equitable remedies and subject to equitable defenses.

real covenant:
a promise respecting the use of land that runs w/ the land. Enforcable by law and has legal remedies.
horizontal privity:
privity between promisor and promisee. The relationship must be tenurial (ongoing, such as landlord tenant or life estate holder and remainder). In most states a grantor, grantee relationship will satisfy this.

vertical privity:
privity between the conveyor conveyee and his successor. if the vert privity is fee simple absolute the promisee or successor may enforce the original horizonal promise against the promisor’s successor. If it’s not fee simple absolute, the promisee or successor cannot enforce against promisor’s successor. Successor to promisee need not have fee simple absolute to enforce against the promisor or promisor’s successor.

spencer’s case test:
the promisee can enforce against the successor to the promisor when: 1) intent to run (there’s evidence of an understanding between promisor and promisee that the burden would run to successors in interest). 2) horizontal privity (only in some states).  3) promise touched and concerned the land (related to the use and enjoyment of the land).

affirmative easement:
a promise to do something on the servient estate for the benefit of dominant estate. Will not be upheld under common law.

Covenant at law:
requires horizontal privity. Can collect damages, but not special damages.
easement enforced at equity:
requires a negative promise (no affirmative promises) . Can collect special damages (injunction, etc).
touch and concern:
requirement of a covenant or easement. it’s not really defined. Wing it. Talk about impact on land (naponsit) vs. personal effects.
spot zoning:
arbitrary and capricious zoning change made only to benefit a private party. Generally it involves a major zoning change in just one small area.
govt seizing and compensating for property or restricting use in such a way that it’s useless to the owner. If it’s eminent domain for the public good or a taking meant to prevent a nuisance its fine. If it’s a public nuisance, no compensation is needed. It’s a bit harder to make this argument with private nuisance.

two policies under which it’s OK: prevent nuisance and providing for the public interest in safe, healthy, pleasant, beautiful, productive, valuable neighborhoods. Courts defer strongly to legislative intent unless it’s arbitrary and capricious. Was the govt objective to be implemented by a reasonable stragegy (RB test, basically).

just compensation:
it’s market value at its current use. No intrinsic value taken into consideration.

physical taking is always compensible. And restrictions that reduce value to zero is compensible. BUT restrictions that only limit the economic exploitation available on the site are not.  Need not compensate for every restriction.

takings compensation test:
1) character of the action (physical taking v theoretical restriction); 2) the nature of interference with the parcel as a whole, factors: extent of reduction in economic value, impact on investment backed use, whether current use can be carried on, whether property owner could make fair return on the property, whether there is reciprocity of advantage.

affirmative easement
an easement in which the servient estate promises to do something. not enforceable.
particular estate
an estate other than the four fee simple estates
Fee Simple Estates
1.  absolute

2.  conditional

3.  determinable

4.  subject to a condition subsequent      
general warranty deed/covenant of general warranty:
warrants the title against all defects of title. Damages only.
special warranty deed:
warrants only against the grantor’s own acts. Acts or defects in the deed from the grantor’s predecessors won’t be warranted.

quitclaim deed:
no warranties on the deed of any kind.

Covenant of seisin:
the grantor warrants that he owns the estate that he purports to convey. Damages only.

covenant of right to convey:
a grantor warrants that he has the right ot convey the property. Damages only.
covenant of further assurances:
grantor promises that he will execute any other documents required to perfect the title conveyed. Damages only.
Statute of limitations on present covenants:
begins to run  at  the date of delivery of the deed
statute of limitations on future covenants
begins to run at the time of eviction or when the covenant is broken.
Fee simple determinable
F.S. That is automatically divested back to conveyor upon some condition being met.
Indefeasibly vested remainder
subject to no further requirements than the expiration of the prior particular estate.  Is certain to present interest at some time in the future.

A to B for life, then to C and his heirs.
Remainder vested subject to partial defeasance.
The remaindermen are a class of people whose membership may be increased.  Certain to become a present interest, but share of the estate may decrease with addition of new members.
A to B for life, then to the children of B.
Remainder subject to complete defeasance
subject to a condition subsequent.  May be one which operates to defeat an interest after it has already vested.  A statement that a remainder is vested is not a statement that the remainder is certain to become possessory.
A to B for life then to C and his heirs on the condition that if the premises are used for other than residential purposes A shall have the power to enter and terminate the interest hereby transferred. 
Remainder subject to a condition precedent/contingent remainder.
A remainder subject to condition precedent exists if at the time it is created, it is not possible to point to any person and say such person would take, if all interests should now end. 
A to B for life, remainder to the children of B.  (B has no children, so???)
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