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Property II
University of Toledo School of Law
Hopperton, Robert J.

§         Nuisance Law does not affect marketability (only non-volitional limits)
·         Transferability = how transferable an interest in land is (how many ways it can be transferred)
·         Saleability = The ability of the owner of land to sell that land to a subsequent owner
·         Marketability = Whether there are interests held by others than the interest holder that will burden the title of the land (relate to a specific parcel of land)
Covenants and Servitudes.
o        Servitudes – non-possessory interests
§         Definitions
§         Easement- non-revocable (contracted for)
·         It is a non-possessory interest in land; it is a right to use someone else’s land.
§         Profit
·         It is the right to enter upon someone else’s land and remove or extract a resource or item
·         It entails the right to remove and an easement to effectuate the extraction.
§         License
·         It is a revocable privilege to do something. It is not an interest in land.
·         In some circumstance is can become irrevocable…
o        Then considered an easement
§         Lease
·         It is a possessory interest in land (as opposed to an easement)
§         Exclusive Easements
·         Only the owner of dominant tenement may use
§         Non-Exclusive Easements
·         Can be used by both owner of dominant and servient tenement (3rd party?)
o        Easements Appurtenant
§         An easement that benefits its owner in another tract of land
§         Diagrams #1 & #3, p. 2a
§         Easements Appurtenant pass with ownership of the land
·         Marketability problems (?)
§         Definitions
·         Dominant Tenement – The land benefiting from the easement
·         Servient Tenement-The land subordinated/burdened by the easement
o        Easements in Gross
§         An easement that benefits another personally, but not as an owner of land
§         Diagrams #2 & #4, p. 2a
§         Easements in Gross are now transferable (How?)
§         There is a servient tenement created but no dominant tenement
·         Does not benefit land, only burden land
o        Creation by Express Grant – Easements
§         Easements are interests in land, thus require a writing to be expressly created
·         Must comply with Statute of Frauds
§         Duration
·         Specified in grant, but if forever it is not an easement, rather a FSA
o        Creation by Reservation – Easements
§         Where conveyor of easement retains an easement.
·         Land conveyed is servient tenement
·         [E.g. sell part of property w/ frontage and seller retains an easement to the road.] §         Where conveyor of easement retains an easement in a 3rd party
·         Now allowed under Willard v. First Church of Christ[attempt to retain parking ] ·         Rule- majority of jurisdictions require 2 pieces of paper
o        O → A (transfer property)
o        A → X (grant of easement t

      Adverse Use
·         Uses the time period (SOL) for adverse possession
·         Used 5 elements of Adverse Possession
Kennedy AP
Hopp AP
Hopp prescription
Actual and exclusive
open and notorious
adverse under claim of right
For entire statutory period.
§         Results under both theories
·         (interruption)When the use has not met the SOL period (adverse possession statute)
·         What can the owner of the land do to prevent an easement from forming?
·         Express Easement: if APor negotiates for easement.
o        Will interrupt Prescription & Adverse Use
·         Active Consent (license):  APor negotiates  for license, but not easement
o        Will interrupt Prescription & Adverse Use
·         Unilateral Consent (??): write letter to give permission
o        May interrupt Prescription. Will not interrupt Adverse Use
·         Physical Act ( O builds fence to block long continued usage & fence stays up):
o        Will interrupt Prescription & Adverse Use