Property I Outline

Property Spring

I. Private land use control
à What can property owners do to control the use of their land (and sometimes the use of other peoples land)

1. Easements
(A)Definition: An easement is a privilege to use or restrict use of the land of another.
*Affirmative easement: An affirmative easement is one entitling its holder to do a physical act on another’s land e.g. right-of-way
*Negative easement: A negative easement is one which enables its h older to prevent the owner of land from making certain uses of that land e.g. light/air
-Four traditional types but U.S. has been more liberal e.g. conservation easement
(B)Appurtenant v. In Gross
(i)Appurtenant: An easement appurtenant is one which benefits its holder in the use of a certain piece of land. The land for whose benefit the appurtenant easement is created is called the “dominant tenement.” The land that is burdened or used is called the “servient tenement.”
(a)Test for: Benefit must be intimately tied to a particular piece of land (the dominant tenement)…Need two separate adjoining properties
(ii)In Gross: One whose benefit is not tied to any particular parcel
(a)Test for: One property and the easement benefits a person not land
*Miller v. Lutheran Conference Camp
-One stock rule: The right of a grantee may be assigned, but if to more than one person, the two parties must work together
-This effectively makes it possible to assign an easement in gross
-Commercial easements in gross can always be transferred while personal covenants (e.g. family specific) used to not be allowed but he court is relaxing its stance
(iii)Profit: Right to go onto land of another and remove the soil or a product of it

2. Creation of easements (PINE)
(A) There are four ways to create an easement: (1) by an express grant; (2) by implication; (3) by strict necessity; and (4) by prescription
1. Express creation: If an easement is created by a deed or will, it is express.
(a)Statute of Frauds: An express easement must be in writing (as per SoF)
(b)Reservation in grantor: Often, an express easement is created when the owner of land conveys the land to someone else but reserves an easement for himself
(c)Creation in stranger to deed: At common law, it was not possible for an owner to convey land to one person, and to establish by the same deed an easement in a third person.
(i)Modern courts abandon this rule
2. Creation by implication (implied by law): As easement by implication may sometimes be created. If so, it does not have to satisfy the statute of frauds.
(a)Requirements:
(1)The land must be divided up (or severed) so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different grantees
(2) The use for which the implied easement is claimed must have existed prior to the severance; and
-Use must be open and obvious + continuous/permanent (to a degree)
(3) The easement must be at least reasonably necessary to the enjoyment of the dominant tenement.
-Courts impose strict necessity regarding this requirement where the easement is created by grant (i.e. in favor of the grantee) v. where the easement is reserved (i.e. in favor of grantor)
-Most courts hold that an easement of light and air cannot be created by implication
**Van Sandt v. Royster: Sewage being discharged into Pl’s basement by Df on adjacent property via an underground sewage line. Court held that this was an implied easement by prior use and holds that the apparent requirement does not have to be visisble but just something that you have a duty to figure out when you buy your own parcel

3. Implied Easement by necessity: The courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other.
(a)Common grantor: The courts that at one time, both the alleged dominant tenement and the alleged servient tenement were owned by the same person.
(b)No prior use: But unlike the easement by implication, there does not have to have been a prior use.
(c)Landlocked parcels: The most common example of an easement by necessity is where a parcel is landlocked, so that access to a public road can only be gained via a right of way over adjoining property.
(d)Duration is only as long as is necessary
*Other v. Rosier
4. Easement by prescription: An easement by prescription is one that is gained under principles of adverse possession. If a person uses another’s land for more than the Statute of Limitations period governing ejectment actions, he gains an easement by prescription.
(a)OCEAN requirements must be satisfied: Open, Continuous, Exclusive, Adverse and Notorious
-Owner must sue for trespass or use self-help remedies to prevent the adverse requirement e.g. seek legal injunction or create physical barrier. A letter usually isn’t enough. (Majority rule)
(b)Tacking is allowed
*Mesid, Lunt, Dartnell
*Willard: Church thinks they have an easement and they have been using the parking lot for church services because the owner had been allowing them to use it…
-Rule: Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since user as of right, as distinguished from permissive user, is lacking.
*Note: Acquisescence in the form of silent, passive assent is not actual consent…so in a lost grant jurisdiction you could merely put up a sign or write a letter making it clear that your neighbor has permission to use your property then it cannot ripen into a prescriptive easement (Presumption based on lost grant theory)
5. Easement by estoppel: An easement by estoppel is created where A allows B to use A’s land under circumstances where A should reasonably foresee that B will substantially change position believing that this permission will not be revoked, and B in fact changes position. An easement can come into existence by this method even though the parties never mention the word easement or the possibility of revocation.

3. Scope of easements (Intent of the parties matters most)
(A)Prescriptive easement: If the easement is created by prescription, the scope of the allowable use is determined by looking at the use that took place during the statutory period. Therefore, a use that is substantially broader (or more burdensome on the servient tenement) than existed during the time when the state of limitations was running will not be allowed.
-Can only be used for dominant estate and will be strictly construed
*Kresge
(B)Development of dominant estate: Regardless of how the easement was created, the court will allow a use that increases due to normal, foreseeable development of the dominant estate, so long as this does not impose an unreasonable burden on the servient estate
(C)Use for benefit of additional property: The holder of the dominant estate is normally not allowed to extend his use or the easement so that additional property owned by him or others is benefited
(D) Placement of the easement usually will be by agreement but otherwise the Courts will usually allow the servient estate holder to decide
(E)Servient owner’s right to relocated easement: Courts are in dispute about whether the servient owner may relocated the path of the easement to a different part of the servient owner’s estate
(i)Common law approach: Rule has been that the path of the easement is fixed
(ii)Modern approach: Servient owner may relocate the easement if certain expenses are paid for by the servient estate holder and the placement is reasonable in light of the original intent of the parties
(F) Dominant estate holder is typically responsible if an injury occurs, etc.
(G) Express easements are examined according to the “rule of reason” which makes a reasonable assessment of the terms and circumstances

4. Transfer/Termination of easements (MAP NERD)
(A)Transfer
(i)Transfer of benefit: Whether benefit runs with the land depends on the type:
-Easements appurtenant à Go with the estate but dominant tenant can extinguish easement before transferring to third party
-Easements in gross à Transfers not favored; generally not assignable unless clear intent
(ii)Transfer of burden
-When the title of the servient estate is transferred, the burden of the easement remains with the property
(B)Termination
1. Natural Expiration
(a) Time passed
(b) Purpose fulfilled
2. Release
3. Merger
*Once two estate merge e.g. dominant and servient you no longer have an easement because you are just using your property then
*If you were to resplit the properties the easement is not automatically brought back into existence
4. Destruction of servient estate
5. Abandonment
*Non-use + intent
-Words alone are insufficient to constitute abandonment
6. Prescription (OCEAN)
a. Non-use by dominant estate for statutory period
b. If you have an easement on your property and you start using it yourself e.g. building walls to prevent your neighbor (for the prescriptive period) then you can terminate the easement)
7. Estoppel
*Servient estate reasonably and detrimentally relies on non-use
*Presault case à Non-use alone will not terminate an easement
5. Licenses
(A)Definition: A license is a right to use the licensor’s land that is revocable at the will of the licensor. This revocability is the main thing that distinguishes licenses from easements.
(i)No Statute of Frauds: A license does not need to satisfy the statute of frauds so it can be created or revoked orally
(ii)Often the licenses create the same rights as an easement and would even be an easement if in writing
(iii)Revocable at will (not a property interest)
-E.g. Right to enter and shop at target
(B)Exceptions to revocability
(i)License coupled with an interest (e.g. right to take timber from land) and the license is to enter the land to retrieve timber
(ii)Estoppel (reliance): A license is irrevocable if its use would have been an easement except for its failure to meet the statute of frauds, and the licensee makes substantial expenditures on the land in reliance on the licensor’s promise that license will be permanent or for a long duration
*E.g. Holbrook v. Taylor à 2 properties, someone claiming they have a right of way on the neighbor’s property and there were improvements on the road and a house built worth $25k. The license, which could have been revocable at will, becomes irrevocable by estoppel due to substantial improvements

6. Public Trust Doctrine?
*Matthews

7. Covenants Running with the Land (this is a promise while an easement is a grant)
*How is a real covenant different from a defeasible fee?
-This can result in forfeiture. Breach of a real covenant results in damages.
*Historical background
-Before zoning and other public land control laws, people made private contractual arrangements to protect the value of their land (e.g. neighbors agreeing properties only used to single family dwellings)
-Today, covenants are still used because enforcement is more flexible because they are private land use control agreements
-Covenants may be found in deeds, leases, and grants