7/28/2019 AEP #1 Property II Outline Key

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AEP #1 Property II 1/23/2009

PRIVATE LAND USE CONTROLS

Creating Servitudes: first and most common way to achieve: AGREEMENT OF THE PARTIES

Easements use of real property without ownership of the land

o Scope:

1. Type/intensity

Can be used only for its intended purpose

o All rights come that are reasonably necessary for the

use/enjoyment of the easemento This includes Secondary Easements

Can grant the right to use it to a 3rd party unless it interferes with the 1st

2. Geographical

Cant be used to serve extra properties

o Misuse creates a forfeiture

o Types

1. Appurtenant goes with the land

2. In Gross goes with the person to whom it is grantedo Stranger to the title: a person who is not named in the original title

jurisdictionally, cannot benefit from in gross easements

4 ways to create an easement:

o A. Express

o B. Implied Easement by Prior Apparent Use

1. Unity of Title/ Common owner

2. Severance of the title could happen through mortgage, if in a title theory JD,not under lien theory

3. Prior Use:

Permanent

Apparent its apparent if a trained person would know

Prior to severance of the title

4. Necessary for the beneficial enjoyment of the land not absolute necessityo C. Implied Easement by Necessity

1. Unity of Title/ Common owner

2. Necessity (absolute necessity)

3. Severance of title

Also, once its located, you cant move it

Exists for the use of landlocked propertyo D. Prescription

1. Duration depends on JD typically 5 yrs

2. ACEHO:

Actual: servient estate has possession Exclusive doesnt mean to the exclusion of all other parties rather,

that its not open to the public

O&N

Continuous

Hostile some courts (Nebraska) have a presumption of hostility

Need to make use of the same general path across the property (although notdoing so may give an easement across the whole property)

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7/28/2019 AEP #1 Property II Outline Key

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AEP #1 Property II 1/23/2009

Cannot acquire a negative easement by prescriptiono Private In Gross easements are not transferrable, unless used as one stock

Commercial are

License: a revocable grant of a right (like easements) for temporary use w/owners permission.

o Generally, they are revocable

o

Irrevocable: esp if the owner knows that the dominant estate is relying on the license Its irrevocable until the owner recoups his investment

Some places say its an easement by estoppel

Elements:

1. Permission

2. Reasonable reliance (but is it ever reasonable to rely on a license?)

o Some JDs say reliance has to be on behalf of the owner

Real Covenants at Law: a promise, usually to not act. 3Elements:

o 1. Intent to burden the land/that the promise runs with the land

o 2. Touch and Concern

Courts are fishy on this with noncompetes and covenants to pay $

Noncompetes - Some courts use a reasonableness test for T&C. HOA Dues: Some courts wont say the promise to pay HOA dues T&Cs the land

o 3. Privity of Estate

Horizontal Privity : 3 different jurisdictional rules

Massachusetts Rule (mutual interest) must have simultaneous

interests in the property at the same time (like a lease, or FSD)

Successive or instantaneous privity imposed at the conveyance, but

the transference had an instantaneous simultaneous interest

Lip Service test courts say that its required but dont do anything to

show that it is satisfied. (basically, done away with it)

Vertical Privity

Shows succession of the land/title from one party to another coming

down the chain of title

HOA may have privity to enforce RC@L on behalf of the homeowners (butT&C)

Equitable Servitudes: eliminates privity from RC@L

o 1. Intent

o 2. Touch and Concern

o 3. Notice so long as they know and had notice, it could be an ES

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