§ 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
Hostile
Acquiescence
open and notorious
Actual
Actual
adverse under claim of right
Visual
Visual
continuous
Exclusive
Exclusive
For entire statutory period.
Continuous
Continuous
§ 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
