Property II, Prof. Olga Moya, Spring 2016
Moya’s Life Lessons:
Life Lesson #1:
You get out of life what you put into it.
Life Lesson #2:
When life or legal problem gets complicated break it down into smaller manageable parts.
Life Lesson #3:
Smile and practice random acts of kindness. You’ll feel so much better and make other folks feel better, too.
Life Lesson #4
You will be more successful at life and at work by practicing diplomacy; not defiance.
Life Lesson #5:
No one really cares how much you know, until they know how much you really care.
· All Essay Exam (closed book)
· Rule of Six – see handout.
· As reading cases, make the following lists:
o Rules of Law – Well established and settled substantive legal principles. (Black letter law, etc.)
§ EX: Easements appurtenant are automatically transferred when the dominant estate is transferred. (The tail follows the dog).
· Given most weight by judges.
o Rebuttable Presumptions –
§ EX: If the recipient of the easement owned a nearby parcel of land that would benefit from the easement, it is presumed that an appurtenant easement was created unless there is strong evidence to the contrary. (pg. 349)
· Reasons: following paragraph on 349
o Rules of Construction – Rules used to construe legal instruments. Mere rules to assist in the interpretation of a written deed/easement/conveyance/document. Not necessarily having the force of law. (used to give meanings to ambiguities)
§ EX: (pg. 355) 7 rules on this page to write into list starting with “the paramount rule of construction is that the intention of the parties, and the grantor in particular, is to be ascertained by a fair consideration of the entire instrument and the language therein, without undue emphasis on any particular part or provision of the document.”
o Public Policy – principles and standards regarded by the courts as being a fundamental concern to all of society. Thus, one can argue that a certain action or holding would protect specific strong public interest, or that a specific holding would injure those interests of the public at large.
§ EX: In property, you want to protect all of the Bundle of Rights that come with property ownership. Such as right to exclude others, right to transfer property (alienation), right to full use and enjoyment of land.
**Every word in the book is important. There will usually be 3 cases per assignment. You will read the cases after reading the black letter law then you will answer the hypothetical problem. Recommends “Understanding Property” and “Student’s guide to covenants and easements” text books. The exam will be 3-hours all essay.
Create four separate lists as you read the material, title each list as follows:
(1) Rules of Law
Rules of law are well established and settled substantive legal principles.
Easement Appurtenant are automatically transferred when the dominant estate is transferred. (the tail follows the dog)
Rules of law have the force of law.
(2) Rebuttable Presumptions
There will be the word “presume” A presumption is when the law presumes X to be true if Y is present but it is always rebuttable.
If the recipient of the easement owned a nearby parcel of land that would benefit from the easement, it is presumed that an appurtenant easement was created unless there is strong evidence to the contrary. (Page 349).
(3) Rules of Construction
These are the rules in construing legal instruments (i.e. rules to assist an interpretation of an ambiguity). They do not necessarily have the force of law.
Examples are on page 355 “The paramount rule of construction is that the intention of the parties, and the grantor in particular, is to be ascertained by a fair consideration of the entire …..
(4) Public Policy.
Public policy are principles and standards regarded by the courts as being a fundamental concern to all of society. Thus, one can argue that a certain action or a holding would protect specific strong public interests. OR, one can argue that it would injure those interests for the public at large. ETPU means the Right to Exclude, Right to Transfer, Right to Possess and Use. The owner has the right to use his land in any way he wishes as long as the use is not a nuisance and complies with any restrictions (statutes or ordinances, easements, covenants, regulatory takings, zoning, and eminent domain). Concept is the bundle of rights (sticks).
Every time you read keep the aforementioned in mind. ***
The big question is can you obtain a property interest in land that you do not own or lease? YES!! Easements, covenants or servitudes.
Express Easements: Classification and Manner of Creation
1. Introduction: The Concept of Servitudes
Servitudes give the owner the right to use or prevent uses in land that he does not possess. One reason this is allowed is for the benefit of society (public policy) such as utilities.
EX. if you are landlocked and cannot get to the road, the right to cross your neighbors land is extremely beneficial to get you to the road (right to cross). This would be in the form of an easement.
EX. the right to prevent a neighbor from altering her property. This would be in the form of a covenant. POA – Property Owners Association provides the covenants and are enforceable against the landowner and enforceable by the landowner against his neighbor.
EX. the right for utility companies to maintain and place cables, pipe lines, wires, are easement in gross (being its personal to the utility company). Easements in gross are assignable and are not automatically transferred. People have to make sure they are capable of being assigned.
Easements and covenants may burden and/or benefit successors of the land. The cost of purchasing an easement should be a lot lower than purchasing a fee simple.
Interests in real property can be classified as either possessory or non-possessory. The owner of a possessory interest has a present or potential right to the possession of real property. It allows for general uses of the property. In contrast, the owner of a non-possessory interest has certain rights in real property possessed by another person. These are restricted or limited use of such property interests. Some of these non-possessory rights are called “servitudes.” In other words, the land owned or possessed by one party “serves” another party.
Usually, all of the houses in a subdivision of single family houses are subject to servitudes of various types. For example, each owner of a house in a subdivision may have the right, by virtue of an agreement, to prevent her neighbor from using his property for anything but residential purposes. Such a right in the land of her neighbor is one type of servitude, a “restrictive covenant” or “equitable servitude.”
In situations where lot owners in the subdivision may be required, by virtue of an agreement, to make monthly or annual payments to be used for the maintenance of common facilities, such as tennis courts or bike paths, that are maintained by a homeowners’ association. This type of servitude is called an “affirmative covenant.”
Within the subdivision, various utility companies are likely to have easements permitting them to lay pipes and wires across land owned and possessed by others. These, too, are a form of servitude denoted as an “affirmative easement.”
Condominiums, whether residential or commercial, have a legal structure that depends on the law of servitudes. Each owner of a unit or apartment within the condominium promises to pay for the maintenance of the condominium and to regulate his conduct in accordance with the rules governing the condominium.
The legal structure of the modern shopping center also extensively uses the law of servitudes. Regardless of whether they own or lease the land they occupy, each store will require rights of access and parking throughout the center. By means of agreement with developers, these rights take the form of various types of servitudes.
Servitudes usually arise from formal agreements evidenced by written documents. The law governing servitudes is governed more by property concepts than by contract law. In this regard, the obligation of a servitude usually “runs with the land.” That is, the creator of the servitude usually is responsible fo
d is afraid that Frank, who owns the adjoining parcel, Blackacre, will build a structute on Blackacre that will block the flow of light and air to Ellie’s windows. Ellie pays $5,000 for an easement by which Frank agrees to build no structure on his property that will cut off flow of the light and air to Ellie’s windows. Ellie has a negative easement in Blackacre, the servient estate. Ellie has the right to restrict Frank’s use of the servient estate. Since Ellie only has the right to prevent Frank from using Frank’s land in certain ways, and Ellie has no additional right under the easement to do anything on Frank’s land, Ellie’s easement is negative rather than affirmative.
A negative easement is negative because it prevents the possessor of the servient estate from doing something that otherwise would be allowed. A negative easement does not authorize an affirmative act on the servient land by the owner of the easement.
EX: Isaac has an easement of light and air over Joan’s land. Joan has no affirmative duty to act. Joan’s sole duty is to refrain from interfering with Isaac’s right to light and air. Isaac’s easement is negative since the easement does not entitle Isaac to perform any act on Joan’s land.
Neither negative nor affirmative easements require any affirmative act by the owner of the servient estate. Under both types of easement the owner of the servient estate merely refrains from interfering with the rights of the easement holder.
Today, negative easements (with the exception of conservation easements) are considered restrictive covenants.
Appurtenant or In Gross
Easements are classified as “appurtenant” or “in gross.” These terms help to describe the people who may benefit from the easement.
All previously described easements are appurtenant easements because they attach to and benefit a particular parcel of land. That parcel is called the dominant estate. When the dominant estate is transferred, any easement appurtenant to it automatically passes with it. Similarly, an appurtenant easement cannot be conveyed without simultaneously transferring the dominant estate. Just as the tail must follow the dog, an appurtenant easement must follow the dominant estate.
A competent draftsperson who intends to create an appurtenant easement will expressly designate the easement as appurtenant to a described dominant estate. In cases where it fails to describe such easement, the courts will determine the nature of the easement from the surrounding circumstances.
If the recipient of the easement owned a nearby parcel of land that would benefit from the easement, it is presumed that an appurtenant easement was created unless there is strong evidence to the contrary. There are three reasons for this presumption of appurtenancy:
First, since most easements are intended to be appurtenant, it is reasonable to assume that the questioned easement was also so intended, at least in the absence of contrary evidence.
Second, since an appurtenant easement passes automatically with a grant of the dominant estate, a finding of appurtenancy tends to protect the grantee of that estate from the consequences of inadvertent failure to include a separate grant of an easement with a grant of the fee.
Third, any detriment to the servient estate is usually offset by a benefit to the dominant estate.