Property II

7/28/2019 Property II

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Property II

I. Servitudes

a. Servitudes give a third party an interest in land in possession of another person for a

stated purpose

b. Easements

i. Express Easements

1. Affirmative vs. Negative Easementsa. Affirmative Easements: Gives owner a right to do something

i. Right to cross land

ii. Right to run pipes underground

iii. Right to run wires overhead

iv. Etc.

b. Negative Easements: Gives owner the right to prevent theservient owner from doing something

i. Conservative Easements

2. Easements in Gross vs. Easements Appurtenant

a. Easement in Gross: Personal to an individual or entity

i. Commercial Easements in Gross

1. Assignable

2. Divisible

a. But must be held in one stockii. Non-Commercial Easements in Gross

1. Trend: Assignable so long as the partiesintended it to be

b. Easement Appurtenant: Connected to a parcel and goes to

whomever owns that parcel

i. Runs with the land

ii. Pass to whomever becomes owner of the dominant

parcel

c. Can a conveyance from A to B reserve an interest for C?

i. Common Law: NO!ii. Minority Rule: YES!

1. Old rule frustrates the intent of the parties

ii. Implied Easements1. Easement by Prescription

a. Arises by operation of law when certain circumstances occur

b. Elements

i. Owner of dominant estate has used the easement

1. Openly2. Peaceably (Redundant to acquiescence)

3. Continuously

4. Under a claim or right (Hostile)

a. Think its yours

b. Know its not yours

c. Dont care whose it is

5. With knowledge or acquiescence of owner

of the soil (Owner of the servient estate)6. For the statutory period

ii. Similar to Adverse Possession minus exclusiveiii. If you are using with permission

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2. Easement by Estoppel [[Irrevocable License]]

a. Created by operation of law when certain conditions occur

b. Elements

i. A license granted to party claiming easement

ii. Substantial expenditure by claimant in reasonablereliance on license not being revoked

1. Eg: Owner of servient estate knows or hasreason to know that improvements are being

or will be made

c. Easements by estoppel continue for so long as the nature of

the license calls for

i. New access arises

ii. As long as it takes to recoup the investment3. Easement Implied from Prior Existing Use

a. When a parcel (or two owner by the same owner) is split and

one sold, but one parcel depends on the other, an easement

may be implied from prior use by single owner

b. Grant vs. Reservation of Easement

i. Implied Grant: A sells quasi dominant tenement

1. Benefits Buyer

ii. Implied Reservation: A sells quasi servienttenement to B

1. Benefits Selleriii. Implied easement must be:

1. Apparent

a. Does not need to be visible to be

apparent

2. Continuous

3. Necessary

a. Grant is strict necessity

b. Reservation is stricter necessityc. Elements

i. Prior to severance, common ownership of servient

and dominant estatesii. At the time of severance, there was a quasi easement

iii. Before separation, use must have been continuous

and obvious to a degree that shows permanency

1. Continuous intent to continue

2. Obvious Detectablea. Constructive Notice: You should

know, so the court says you do

b. Inquiry Notice: Reasonable

person would inquire further.

Charged with what he would find

out from inquiry

iv. Easement is necessary

1. Requisite degree of necessity variesd. Requires proof of past use!

4. Easement by Necessity

a. Grantor conveys an inner portion of land that has no access to

a public highway except over the remaining lands of either the

grantor or the grantor plus strangers

i. Also works in reverse if he sells off surrounding land

and is now landlocked

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b. Elements

i. Prior to severance, common ownership of servient

and dominant estates

ii. Severance results in a landlocked parceliii. Servient has access to public highway

iv. Easement is necessaryv. Granted only over land owned by a party to the

transaction which left the parcel landlocked

c. What is necessity?

i. Some Courts: Strict Necessity

1. High degree of necessity needs to be shown

if this is the sole basis for inferring theparties intent

a. Difficulty in inconvenience does

not meet this standard! (Maybe an

easement was implied though?)

ii. Other Courts: Lesser Degree

1. Easement is necessary if existing access is

inadequate, difficult, or costly

iii. Some Courts: No easement by necessity at all ifclaimed by the grantor (implied reservation)

iii. Scope of Easements

1. 2 Scope Issues:

a. Intensity and type of use by the dominant estate

i. Misuse: Using the easement in a way not permitted

by the easement1. Brown Balancing

a. Balance facts of the case to

determine whether the misuse is

adding burden to the servient estateb. How large the dominant estate is now or may become in the

future

2. Hard-Ass Rule: Granting of an injunction will block all use of theeasement until it can be proven that extension of the scope of the

easement is necessary

c. Real Covenants

i. A promise or agreement, generally to do or refrain from doing something on

land) that benefits or burdens not only the original promisor and promisee, butalso benefits or burdens their successors in interest

ii. For real damages, we need a real covenant

iii. Elements

1. An enforceable contract in writing

2. Intent on the part of the original covenantor and covenantee for the

covenant to run with the land

3. Substance of the covenant must touch and concern the land

a. 2 Testsi. Prof. Bigelows Test

1. Does the burden or benefit effect the valueof the land?

a. Covenantors interest is made less

valuable; OR

b. Covenantees interest is made more

valuable

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ii. Caulette Test

1. . . . promise must exercise direct influence

on the occupation, use, and enjoyment of the

premises2. Must be a promise respecting the use of the

land4. Horizontal Privity

a. Agreement was created in connection with transfer of land

i. If two neighbors one day simply make an agreement,

there is no horizontal privity because the agreement

was not made in connection with a transfer of land

5. Some degree of vertical privitya. Relevant party acquired some portion of original estate in the

agreement

b. Analysis:

i. Strict for burden to run

1. Relevant party has succeeded to at least the

same durational estate as was held by an

original party

ii. Relaxed for benefit to run1. Relevant party has succeeded to some estate

in the land (equal or lesser)6. Notice at the time a person acquires the burdened property of the

existence of the covenant required only if the acquirer gave value

a. Not required for the benefit to rund. Equitable Servitudes

i. Also binding on successors of original covenantors, but is generally only

enforceable in equity (injunctions) rather than through an award of damages

ii. Elements

1. An enforceable contract in writinga. May be created by implication under limited circumstances!

i. Common plan or schemes

1. Neighborhoods2. Intent on the part of the original covenantor and covenantee for the

covenant to run with the land

3. Substance of the covenant must touch and concern the land

4. No privity required!

5. Notice at the time a person acquires the burdened property of theexistence of the covenant required only if the acquirer gave value

II. Termination

a. Termination of Easements

i. Abandonment

1. Non-Use + Other Act

ii. Merger

1. Servient tenement and dominant tenement come into same hands.

2. Easement is extinguished and does not revive even if parcel is dividedagain

iii. Termination by Prescription1. Servient tenant takes action inconsistent with the continued existence of

the easement

2. This action continues in a manner that is:

a. Continuous

b. Open and notorious

c. Hostile (requisite state of mind)

d. For the statutory period

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e. Without effective action by easement owner

iv. Termination by Estoppel

1. Servient tenant takes action inconsistent with continued existence of

easement in reasonable reliance on behavior by dominant tenant

2. And reinstatement of easement would cause unreasonable harm toservient tenant

v. Loss of Purposevi. Express Agreement of Parties

vii. Limitation on Original Easementb. Termination of Real Covenants and Equitable Servitudes

i. Benefit In Gross (personal); Burden Appurtenant (with land)

1. Reluctance to enforce burdens where there is no responding benefit to

surrounding land RC/ES terminates!

Benefit Appurtenant; Burden In Gross

No public policy against it RC/ES continues!

ii. Exception: Common Interest Communities

1. Benefit to the Association (incoming dues) is in gross

2. Benefit is not tied to the land: Ownership is not needed for benefit

3. Burden to homeowners (fees) will still run because Association is

acting as an agent for the owners of land in the Association

iii. Changed Circumstances1. A residential use only covenant may be unenforceable due to changed

circumstances when there is:a. No substantial benefit to the covenant (or it is not of

substantial value) AND

b. Original purpose can no longer be accomplished

iv. State Action Doctrine

1. The Constitution only restricts state actors

v. Abandonment

vi. Merger

vii. Termination by Prescriptionviii. Termination by Estoppel

III. Zoning

a. Backgroundi. Police Power

1. The sovereigns historic power to regulate in order to promoted health,

safety, morals, or general welfare

a. Sometimes trumps individual economic rights in some cases

b. Must be a very clear connection between the law ans police

power goals

ii. Purpose of Zoning

1. Create and oasis to promote raising children and their safety

2. Keep traffic from commercial areas away from where our children play

iii. Constitutionality of Zoning

1. Cannot say that it is arbitrary, unreasonable, or not substantially

relating to public health, safety, morals, or general welfare

b. Nonconforming Usesi. A use that legally existed before a zoning provision, but which does not comply

with the provision1. Amortization requires that use to end after a specific period of time

a. Majority: Constitutional exercise of police power as long as

its reasonable

i. Test: Do the benefits of the community more than

offset the losses to the affected landowners

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b. Minority: Once a nonconforming use has been established

then the right cannot be abrogated or destroyed, unless it is a

nuisance, it is abandoned, or it is extinguished by eminent

domain

c. Flexibility

i. Variances

1. To qualify for variances, must showa. Exceptional and undue hardship

i. No effective use of the property can be made if the

variance is denied

ii. Conditional Variance: Variance granted which will

entice neighbors to sell strips of land so the lot in

question will conform (its going to be built anyhow,but if you help, it will conform and be nicer)

b. Variance can be granted

i. Without substantial detriment to the public good and

ii. Will not substantially impair the intent and purpose

of the zoning rules

2. Very infrequently grantedii. Special Exception

1. Ordinance anticipates exception and gives standardsa. Permit or exception must be granted if requirements are met

d. Exclusionary Zoning

i. Areas are zoned so that certain groups, classes, and types of people are excluded

1. Municipality gets zoning power from the police power, so zoning must

promote public health, safety, morals, and general welfare

a. If it does not, it is not within the governments power

b. General welfare is welfare of state as a whole, not just that

area!

IV. Takings Clause [5th and 14th Amendments]

a. Government can take land for a public use, but must provide just compensationi. Rational Basis Test!

ii. Heightened Scrutiny

1. Nollana. Regulation must be reasonably related to invasion to avoid

paying compensation

2. Dolan

a. Court rejects reasonably related language for roughly

proportional3. Nolan & Dolan make it pretty impossible for City to trade building

permits for easements

a. Compensation must be money, not value of allowing permitb. Public Use

i. Narrow: Literal use by the public

1. Highways, parks, government buildings, etc.2. Michigan Test

a. Public necessity of the extreme sort, otherwise impracticablei. Public benefit cannot be achieved without eminent

domainb. Private entity remains accountable

c. Condemnation is itself based on a public concern

i. Land is a nuisance, harmful to public

ii. Broad: Any public benefit or advantage

1. Not literally open to the public

2. This is the majority test!

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c. Physical Occupation

i. Categorical Rule

1. Physical occupation is a bright-line rule, so it doesnt matter how big or

small (cable wire running through 12 feet of property), it is still a

physical occupation, which makes it a takingd. Regulatory Takings

i.General Rule:

While property may be regulated to a certain extent, if regulationgoes too far it will be recognized as a taking

ii. Regulation must drive the economic value to zero to constitute a taking

1. Keystone

a. Regulation for pillars in mines is not a taking because it is not

driving the economic value to zero

b. Mahon was the same rule, but under old law was considered ataking

i. No longer good law

2. Private/Public nuisance laws are not takings even if the economic

value is driven to zero!

a. Forfeiture laws tend to be nuisance laws

iii. 2 part test (no longer good law)

1. Legitimate end

2. Substantially related meansa. Now rejected by Lingle

b. Penn Central said it was not a taking, but arrived there by theold law so do not use this case!

e. Compensation and Value of Propertyi. Time

1. Temporarily drives the economic value to zero not a taking because

it has future valueii. Space

1. If only part of the propertys value is driven to zero not a taking

because the rest of the property has value

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Property II

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