Lindsey
Property II
Spring 2011
I. Discrimination in leasing
A. Civil Rights Act of 1866 § 1982
1. All citizens of US shall have same right in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real property
a. Public- Government selling property or laws about selling property
b. Private- cannot refuse to sell or lease based on race but happened anyway
B. Fair Housing Act
1. Prohibits discrimination in the sale or rental of housing based on race, color, sex, familial status, national origin, and handicap
2. Cannot print, act in discriminatory behavior, cannot ask, cannot misrepresent availability
3. Section 3602
C. Claims under the Acts
1. Claim based on race discrimination can be filed under §1982 or FHA
2. Gender claim or family status can only be brought under FHA
D. Exception for living at residence
1. If you are going to live there you can discriminate but if you print an AD saying certain people are not allowed it violates FHA
2. BUT someone has to complain- ALL craigs lists are in violation
E. Janick v. Dept. of Housing and Urban Development
1. Apply the ordinary reader standard in determining what is “indicated by an AD”
2. Any AD that would discourage an ordinary reader from applying
II. Servitudes- a group of related private property interests that confer non possessory rights in land possessed by others
A. Rights to enter/use another’s land
1. Easement
2. Profit- the right to detach and remove something inherently attached to the land of another, such as timber and minerals
3. License- closely resemble easements, except that a true license is revocable by the servient owner (an easement is irrevocable)
B. Promises regarding use of one’s own land
1. Real Covenant
2. Equitable Servitude
III. Easements
A. Definition- A privilege to use the land of another
1. Affirmative
i. Gives easement holder the right to use land owned by another
2. Negative
i. Gives easement holder the right to prohibit the landowner from making a particular use of his/her own land
a. Traditional CL Examples- to prevent interference with flow of light, air, water, support of building
b. Modern Example- Conservation, scenic
ii. Not enforced that much in olden days
a. Decreased land alienability and marketability
b. “discoverability” of the easement hard bc no physical sign
B. Easement Appurtenant vs. In gross
1. Appurtenant
i. Benefit another parcel of land
ii. There is a servient estate and a dominant estate
a. Servient=someone else using the land for their benefit
b. Dominant=get the benefit of another parcel of land
i. “runs with the dominant estate”
iii. Example- right of way to access adjacent land
iv. Can be transferred to new owner upon sale of the dominant estate
v. Can be terminated through agreement of dominant and servient estate owners or by express terms in the K
2. In Gross
i. Benefit an individual/entity (rather than their land)
ii. There is a servient estate but no dominant estate
iii. Example: oil/gas transport lines
iv. Personal, not transferred to new owner upon sale
v. Exception: Commercial in gross can be transferred- benefit to society
vi. Can specify how long want EI last with the person
a. If not stated then indefinite
3. Alft v. Stewart
i. If the deed is not ambiguous look at the four corners
ii. There is a constructional preference for appurtenant over in gross
a. It makes the land more marketable
b. Your property is worth more if neighboring property is worth more
IV. Affirmative Easements
A. Creation by express Grant or Reservation
1. Grant
a. Deed or will (writing that satisfies the Statute of Frauds) expressly grants an easement to another
a. If not in writing then a license is made
2. Reservation
a. Deed grants a possessory interest to other party but reserves an easement
3. Reservation benefitting “Stranger” to Title
a. Deed grants a possessory interest to other party but reserves an easement for a third party
b. Example: A sells parcel to B but retains easement for parishioners to use road
i. Common law this was not allowed but modern authority supports it
V. Implied Easements-not in writing
A. Easement implied from Subdivision Plats
1. Plat map unambiguously designates streets or rights of access as EA
2. Plat Map was recorded
3. Landowner’ deed expressly incorporates the plat map
B. Easement by Necessity (Landlocked Property Rule)
1. Owner of a parcel conveys part of the land
2. Conveyance creates landlocked condition
3. Parties failed to create an express easement
4. Key: How was landlocked land created- if it was something outside the severance of title then no easement of necessity
a. Landlocked has to occur at the time of conveyance
5. Only last as long as need to provide access to landlocked parcel
C. Easement Implied From Prior Use (Quasi-Easement)
1. Landowner uses part of his tract to benefit another part while tracts are in unity of title
a. Also another party can be using the property prior to the division
2. Severance of title- Landowner conveys one part of the tract
3. Use is:
i. Apparent (known or reasonably detectable)
ii. Continuous
iii. Reasonably Necessary- more than convenient but less than absolute
iv. Traditional CL test-reciprocal benefits test
a. Both parties had to benefit
v. Modern test- Restatement of Servitude—a court should imply an easement from prior use when, upon severance of the parcels, “the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue prior use”
a. Whether “reasonable grounds” existed is a determined by:
i. Whether the prior use “was not merely temporary or casual”
ii. Whether its continuance was “reasonably necessary” to enjoyment of the benefited parcel
iii. Whether its existence was “apparent or known to the parties”
iv. Whether the use was “for underground utilities serving either parcel”
vi. Unlimited duration and extent of use depends on the nature of the pre-existing use
4. Bob’s Ready to wear v. Weaver
i. Continuous- parking lot commonly used to benefit both businesses
ii. Apparent- They knew people parked in back and Bob fixed up back door
iii. Less than absolutely necessary but more than convenient
iv. Bob doesn’t get it because burden on Weaver too great- if Bob gets easement then they have to keep it a parking lost forever
5. Example of sewer pipes
i. Continuous and reasonably necessary
ii. Apparent- underground so not really but a reasonable inspection would discover it so it would probably be allowed
D. Prescriptive Easement
1. Similar to adverse possession but relates to use rather than possession
2. Adverse user acqu
ents, repairs or otherwise exercise control
v. Created by a writing (to satisfy Statute of Frauds)
b. Lease—look for:
i. Possession (exclusive control) rather than use
VI. Scope of Easements
1. Express Easement- terms of the deed in light of surrounding circumstances
a. If the deed is silent then follow a reasonableness standard
b. Unless the intentions of the parties demand a different result, the owner of the servient estate may make any use of the burdened property that does not unreasonably interfere with the enjoyment of the easement by its owner for its intended purpose
c. The owner of the easement may make any use of the easement that is “reasonably necessary” to the enjoyment of the easement, and which does not cause “unreasonable” damage to the servient estate or “unreasonably” interferes with the enjoyment of the servient estate
2. Easement by necessity- determined by the extent of the necessity
3. Easement based upon a pre-existing use- determined by the nature of the pre=existing use
4. Easement by prescription- Determined by the use made during the statutory period
A. Maintenance of Easements
1. Look to the parties intent- if expressed
2. If not expressed then default rule is
a. Generally- easement holder has the right/obligation to maintain the easement
b. Exception- easement shared with the owner of the servient estate then they share the responsibility
3. The parties can expressly change these rules
a. Schulemer v.Elrod
i. In deed that D would pay $100 a year for the P to maintain the road, D never paid and P never maintained, D did maintain on their own but P wants money. D eventually got a setoff
B. Change and Expansion of Use
1. General Rule: Easement expressly limited to a particular use
a. Any change involving a new, unauthorized use is excessive
b. Servient owners can enjoin the use
2. Easements not limited by express terms
a. Courts look for the parties “presumed intent” based upon the type/purpose of the easement
b. General Presumption- easement holder can do what is reasonably necessary for enjoyment of the easement
3. Henley v. Cablevision
a. Exclusive(servient landowner cannot share or benefit from the use)- If servient owner does not participate in easement then it can be apportioned
1. But additional uses must be within the scope of the easement
i. Nature of the use- are additional uses of the type permitted by easement
ii. Intensity of the use- “one stock rule” owners must act in concert as to not overburden the land
iii. Manner of the use
a. Was new use reasonably forseeable?
i. Ex. Regular tech growth
