AEP #2 Property II Outline Key

7/28/2019 AEP #2 Property II Outline Key

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AEP #2 Property II 2/6/2009

PRIVATE LAND USE CONTROLS (continued)

Defense to RC@L and ES:

o Recording Statutes : if a party is a bona fide purchaser (BFP) and another party had a prior

unrecorded interest in the land (RC@L, ES, etc.), then the BFP now owns the interest he

bought free from encumbrance by the unrecorded interest

BFP: one who pays value without notice and in good faith

3 types ofNotice:

Actual

Constructive (record)

Inquiry

Implied Reciprocal Negative Easement:

o 1. Intent words of the doc created it for buyers

Common Grantor

Course of Conduct that he intended to restrict not only the land hes disposing

of but also what he retained

o 2. T&C

o 3. 3 types of Notice: for IRNEs, usually its inquiry notice

Inquiry should have known by looking around and seeing the covenant

imposed on all other homes in the area

Actual

Constructive

Other Limits:

o Violates public policy

o Its illegal

o If its ambiguous, go to what makes the property useful

Destroying Servitudes:

Ways to do it:

o 1. Abandonment Best piece of evidence on abandonment is a writing saying I abandon it

For RRs and Rails to Trails:

Certificate of abandonment

Removal of all facilities

However, lack of use does not terminate an easement

o 2. Estate Merger Combining dominant and servient estates

o 3. Mutual agreement

o 4. Expiration (if the document sets the time period)

o 5. Prescription

Requires a request for the use of the easement and refusal to be hostile

Laches and Estoppel may also be usedo 6. Changed conditions forces outside the community that make the benefits of the

servitude meaningless

Holiday House: where the city had changed so much that the covenant wasnt

applicable

o 7. Misuse

In gross easements dont have a dominant estate because there isnt any benefit or burden to an

estate theyre vested in persons, not estates.

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Changing Servitudes:

Provision in the covenant may allow a process for changing the covenant

Cant bring in a new restriction unless had notice of it before (like no dogs when ppl have dogs)

Nuisance unreasonable non-trespassory interference with anothers use and enjoyment in the property

(this is an objective standard).

o

Coming to the nuisance sometimes bars the recovery on the nuisance - jurisdictionalo Odors are the most usual nuisance

o Difference between public and private nuisance: whos enforcing itthe govt vs.

individuals. Also, the public at large is another key factor

Private Nuisance must own the land to have standing

o 3 Tests:

1. Social Utility/Balancing Test: gravity of harm>benefits or

Cite the benefits and the harms

Factors in Utility of Conduct: R828

o 1. Social value of the primary purpose of the conduct

o 2. Conduct s suitability to the character of the locality and

o

3. Impracticability of preventing or avoiding the invasion Factors in Gravity of Harm: R827

o 1. Extent of the harm

o 2. Character of the harm

o 3. Social value of the invaded interest (use/enjoyment)

o 4. Invaded interests suitability to the locality

o 5. Burden (of the invaded person) of avoiding the harm

2. Threshold Test (R829A): its a nuisance if the harm caused by the nuisance is

severe and greater than one should bear without compensation. (light display in

Arkansas). Some JDs dont follow this

3. Restatement of Torts 826: coming to the nuisance is only a factor

An intentional invasion of anothers interest in the use and enjoyment of

land is unreasonable if

o (a) the gravity of the harm outweighs the utility of the actors

conduct (social utility test), or

o (b) the harm caused by the conduct is serious and the financial

burden of compensating for this and similar harm to others

would not make the continuation of the conduct infeasible

Must have intentional serious harm and a way of fixing

it that has been declined.

the harmed party has a duty to use reasonable means to

mitigate the damage

o When the two are mutually exclusive (well and septic tank field) the first one there wins.

o

Common Enemy Problem all have the right to fight the elements from their propertyo Right to Farm Statutes elevates the level of coming to the nuisance

o Most JDs have given up on the idea that the only remedy for a nuisance is an injunction

In some cases, the court can force parties to agree on a price for an easement, if

enjoining would be detrimental to the community (Boomer Cement)

Public Nuisance unreasonable interference with a right common to the general public

o Nuisance Per Se if its one of these, dont need to argue it if its in the statute

o Must have a standing to bring the nuisance usually a government org

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Sometimes a conglomerate is so big that it is a quasi-governmental org.

Also, if they have a particularized injury different in kind, not merely in degree,

from that suffered by the general public

An injury different and discrete from that generally suffered by the

public, yet tied to the common right interfered with

Lateral and Subjacent Support: usually dealt with in statute and negligence actions now

Lateral: cant remove on the property line s/t the neighbors yard caves in its natural state

Subjacent: cant remove below the property

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AEP #2 Property II Outline Key