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30 Cards in this Set
- Front
- Back
Types of easements |
- Express - By prescription - By permission - By implication - By necessity |
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Conditions for express easements |
1). Writing evidenced by statute of frauds 2). Permitted use including scope 3). Benefit is attached with the property 4). Provisions re: transferability and divisibility are changed 5). Locations of use 6). Includes limitations, responsibilities of burdened property and beneficiary 7). Possible provisions for termination (Times and conditions) |
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Permissive easements (1 of 3) |
Permission (estoppel > temporary > license)
Estoppel – irrevocable license 1. Permissive use (express or implied permission) 2. Creates reasonable reliance of user (c. relationships) |
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Permissive easements (2 of 3) |
Temporary possession (Shack) 1. Coupled with possession so > licensee rights 2. Grantor may not isolate grantees |
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Permissive easements (2 of 3) |
License (personal privilege) 1. Presumed revocable; any breach remedied by money damages 2. Presumed non-transferable |
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right of first refusal |
O will sell to A, and before O enters into a contract with a third party for an easement, they must get A's permission |
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Implied Easements |
Prior Use Necessity |
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Prior Use |
Existed before subdivision Known use Use would be expected to continue |
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Necessity |
Landlocked strict/ obvious voluntary? ONLY can be from there Notice = examination Remedies: Injunction Eminent Doman |
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Prescription |
Adverse possession plus difference for Exclusive and Hostile: Exclusive: normal public cannot use it Hostile: - Lost grant - permission once given but now lost - Acquiescence - no formal permission given for statutory period but allowance |
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Transfer of Easement Appurtenant |
§ Presumed to run with the land§ Benefit of easement may not betransferred to land that was not originally intended to benefit from easement |
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Transfer of Easement In Gross |
Personal use = non transferable by beneficiary (though burden runs against successive holders of burdened property) Commercial Use = transferable by beneficiary |
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Devisability of Easement Appurtenant |
Runs with the land -- automatic with dominant party May not be transferred to land that was not in original benefit Included in scope restrictions |
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Devisability of Easement In Gross |
Transferable and exclusive, Potential limit on divisibility · All holders of benefit must agreeto further subdivisions Miller v. Lutheran Camp· Tenants in common rule: Uses maybe subdivided as long as they don’t unreasonably interfere with fellow benefitholders |
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Remedies for Improper Use |
Damages Injunction Termination (Rare) |
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Termination through writing |
- Original deed provisions - Release: Benefit holder expressly grants release - Merger: BH buys other property - Eminent Domain: Gov buys burdened property |
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Termination through Conduct |
Abandonment - engages in conduct that reflects intention to permanently discontinue use of easement Estoppel - spends money in reliance on expectation that easement will be used in the future and spends $ in reliance on that expectation (ex structure build on roadway) Prescription- Burden H blocks Benefit H use |
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Transfer |
Convey entire interest |
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Devise |
Convey partial interest |
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Motivations for doing this |
Everyone, and everything. |
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Stopping Hostility in Prescriptive Easements |
Action to stop must be unequivocal - Send someone notice that they no longer have right to use - Legal act of filing action - Calling police - Barring/Interrupting |
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Conservation easement |
A has right to require that B can't use easements for anything other than a nature preservation |
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Takings of Easements |
Government must provide just compensation Can't seize easements that appear to be abandoned |
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COVENANTS/EQUITABLE SERVITUDES |
Promises related to land where benefitted party can exert control over the use of the burdened land - Both benefit and burden run with land |
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Elemets of RC/ES to run with land |
Promise must be in writing Notice Intent Touch and Concern (1) real and substantial benefit on ordinary users (2) materially limits ordinary uses of burdened property |
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Commercial covenants not to compete |
- Certainly imposes a burden that touches and concerns - Restriction does not confer an actual benefit on another identified lot that would be used for prohibited use and would actually benefit from restriction on the property |
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Elements for if P decides to enforce Covenant at law |
Horizontal privity Vertical privity |
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Horizontal privity |
Relationship between original promisor/promisee - English common law: HP only if RC was made in context of LL/T relationship - US jur: buyer/seller real is sufficient to eat HP: so long as RC is contained in the deed of sale |
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Vertical Privity |
Relationship between current P and D and the original promisee/promisor SAME AS SUBLEASE/ASSIGNMENT - Burden: most jurisdictions require strict VP: Same quality of estate - Benefit: most jurisdictions accept relaxed VP: some portion of land possessed by original promisor |
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omg |
come on pri |