Look at principle problems and example problems in chapters!
I. Non-Possessory Interests
a. Easements-right to use land possessed by another. No right to possess, only right to use. For limited purposes. A property interest in land, not simply a contract right.
1. Statute of frauds-The grant of an easement is subject to the statute of frauds. A person cannot own an easement in their own land.
a. In writing
b. Identify grantor and grantee
c. Must contain words manifesting an intent to create a property interest.
d. Must describe the land affected (servient estate)
e. if impertinent easement, should reference dominant estate.
f. Must be signed by grantor.
Exceptions:(later in course)
2. RESTATEMENT-An easement is an interest in land in the possession of another which:
a. entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;
b. entitles him to protection as against third persons from interference in such use or enjoyment.
c. is not subject to the will of the possessor of the land;
d. is not a normal incident of the possession of any land possessed by the owner of the interest; and
e. is capable of creation by conveyance.
3. Five types:
a. Express easements (in fact, other four in law)-only when landowner agrees.
b. Easements implied from prior existing uses
c. Easements by necessity- declared when a piece of land is landlocked, otherwise useless. In most instances they should have first negotiated the easements, now they must approach the neighbor and must negotiate an easement for a price. Other side may get ordered by court and may now not get anything in return.
d. prescriptive easement- easements by adverse possession. Basically a trespasser or squatter, and the rightful property owner does not evict.
e. Irrevocable easements-easements by estoppel. Commitment to easement is such that the court should rule it an easement by estoppel.
(f) Quasi-easement – easement from prior use of land
4. Analysis for enforcing an easement: (look at four corners of documents)
1. if clear and unambiguous, give full force and effect to the document, no parol evidence allowed).
2. Unclear document-(same for covenant)-For exam go through all four.
a. apply rules of law.(statutes, precedent, common law)
1. intention of parties is to be ascertained by a fair consideration
2. Grant is to be construed in favor of grantee.
3. a fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended.
4. Where the term “right of way” is used in a deed it usually indicates that only an easement or a right of passage is being conveyed or reserved.
b. Look at rules of construction.
1. Construction should be adopted which gives effect to all words. Each word and provision should be given
ning restrictions, etc)
iii. Possessory – owner has present or potential right to the possession of real property.
1. Fee simple- present possesory interests. Can act like an owner. Should cost more than servitudes because you get more.
iv. Non-possessory (“servitudes”)– Owner has certain rights in property possessed by another person. Give owner the right to use or prevent the use of property.
1. restrictive covenant/equitable servitude – each owner of house in subdivision has right to prevent her neighbor from using his property for anything but residential purposes
2. affirmative covenant – all of lot owners in subdivision may be req’d to make monthly/annual payments to be used for maintenance for common facilities (i.e. tennis ct., swimming pool)
v. Servient estate (SE) – land subject to E (i.e. burdened by E)
vi. Dominant estate (DE) – land benefited by E
Affirmative Easement – holder has right to do things which, were it not for E, she would not be permitted to do (i.e. ROW)