Licenses
Definition of License
A license is a personal privilege to enter into someone’s land for a specific purpose.
What is the definition of Fixtures
Fixtures are formerly personal property (items) that got attached to the real property (land) in such a way that they became part of the land.
What is the difference between a Burden on the land and benefit on the land?
A benefit is placed on the land when the covenant gives the owner’s land an advantage.
A burden is a restriction placed on the land in favor of another parcel of land.
Note: Test for whether the benefit runs to the next landowner (whether they can enforce their benefit), and whether the burden runs to the next landowner (whether they are bound by the burden):
How would you describe the prior non-conforming use?
If a once lawful use of property has become illegal due to new zoning restrictions, then it will be grandfathered in and allowed to continue its prior use. However, the property owner must adhere to a few regulations to be granted a prior non-conforming use:
What is the definition of Easements?
An easement is a property interest that entitles its holder to the use and enjoyment of another person’s land.
An easement cannot be unilaterally expanded.
Do licenses need to be in writing? Why or why not?
Licenses do not need to be in writing because they are not subject to the statute of frauds.
Note: If the grantor tries to make an “oral easement” it fails, and a revocable license is created because easements must be in writing.
What are some examples of affixed fixtures?
windows, ceiling fan, doors, fences etc. They lose their status as personal property, and they pass with the ownership of the land.
What are the two types of covenants?
1) Affirmative Covenants – Affirmative covenants are a promise to do something related to the land.
2) Negative Covenants – Negative covenants are a promise to refrain from doing something related to the land.
What does the Undue Hardship include (involving variances)?
Hardship has to be more than a mere inconvenience (i.e. you can’t build a certain amount of feet from the side of your house).
The hardship cannot be self-inflicted.
You cannot purchase a home knowing that you will need a variance, and then request one. If there is an issue, it must be dealt with in the initial price bargaining.
You cannot create a variance.
What is the definition os "Misuse of an Easement"?
Misuse of an easement does not terminate the easement, but the grantor can sue for an injunction against the grantee.
Are licenses a land transfer and what happens if the licensee messes up?
Licenses are not a land transfer, they are permission to “have fun” on someone’s land. If the licensee messes up then the licensor can kick them out.
Give two examples of Fixtures and two examples of non fixtures
Fixtures: custom goods built into the property, agricultural items (cattle stalls, toolshed, and henhouses), items in nature (tree).
Not Fixtures: Crops that are cultivated annually, things that can be removed, appliances unless they are specially made for the home.
****Anytime the exam says something is “custom,” made for the house then it is a fixture.
An equitable servitude can be terminated by the following:
1. release by a party
2. abandonment or estoppel
3. merger
4. condemnation by Uncle Sam (Eminent Domain)
What are the two types of Zoning
1) Cumulative Zoning – In a cumulative zoning plan, any use permitted in a more highly restricted zone (i.e. residential) is permitted in a lower zone (i.e. industrial). However, less restrictively zone properties cannot be built in highly restrictive zoned areas (i.e. a house can be built in an industrial but a factory cannot be built in a residential zone).
Non- Cumulative Zoning - In non-cumulative zoning, only activities that are zoned for that particular area are allowed.
2) Residential Zoning – Residential zoning is the highest and most restrictive type of zoning.
What is the definition of "Recreational Easements"?
If the grantor gives the grantee an easement for something like a garden, the grantee cannot start running a business. The grantee’s use will not terminate the easement but the grantor can sue for damages (money).
How are profits created?
profits are created expressly by grant or by implication. Profits share all of the same rules of easements and can be either appurtenant or in gross.
What are the steps to take when there is no mention of fixtures in the lease agreement?
- substantial harm test
- removal cannot harm the property
- Exception – If leaving the fixture results in a windfall to the landlord (a large amount of money) or an unfair deprivation to the tenant, then the tenant can still remove it even if it does cause harm to the property.
What is the side rule (MEE) involving the Benefits Runs Test?
If both parties sell their land, first analyze whether the burden runs first since it has more elements than the benefits test. It also has a lot of the same elements.
What is the two-part test you must apply when regarding variances?
1.) Undue Hardship -
The property owner must show a undue hardship arising from the unique nature of the land, meaning no effective use of the property can be made if the variance is denied.
2.) Unique Hardship -
- The property owner must show that their hardship is unique when compared to the properties surrounding it.
What are some key differences between Affirmative Easements (Positive) and Negative Easements?
- Affirmative easements allow the grantee to go on someone’s land and do something. The grantee’s entry onto the land can be in the sky, underground, or on the land. This type of easement protects the grantee from trespass.
- A negative easement prevents the grantee from performing certain actions on their property. The grantor cannot do anything on the grantee’s land, but the grantor can tell the grantee not to do anything on their parcel that will interfere with the grantor’s interest in it.
What are the three situations which a license may be prevented from termination
1) When the grantor specifically states that the license will be irrevocable
2) When the licensee has invested a significant amount of money or resources into the license. In this situation, if the license grantor revokes the license after the licensee has acted with reasonable reliance, then the license becomes the equivalent of an easement.
3) When the license is coupled with an interest in the land then it cannot be revoked.
What rights does a commercial tenant have?
- A commercial tenant can remove trade fixtures installed for the purpose of carrying out a business or trade on the premises.
- the tenant must 1) remove the items before the lease terminates, and 2) a commercial tenant must restore the premises to their original condition.
Name three out of the five requirements to determine whether a covenant run with the land and bind a future landowner or not:
1) The real covenant must be in writing; and
2) The original parties must intend for the burden to run during the original conveyance of the land; and
“This covenant shall bind and benefit the heirs and successors and assigns of the original parties . . .”
3) The covenant must bind people in their capacity as landowners, not as individuals; and
The covenant must have something to do with the land – “You can’t graze goats on the land” or “You can’t use the property for commercial purposes.”
4) The original parties must be in privity; and
5) The burdened party must have notice of the covenant.
Notice can be actual notice, inquiry notice, or record notice for the burden to run.
What is the three Prior Non-Conforming Use?
1) The property owner cannot intensify the use of the property.;
2) If the non-conforming property is destroyed, the property owner cannot build another of the same non-conforming property. Any new structure must abide by the zoning laws in place.; AND
3) The non-conforming use can run with the land, even if it is inherited by a child when their parent(s) die.
How do Easements transfer?
Easements transfer automatically with the sale of the dominant estate.
Easements transfer whether or not they are mentioned in the new deed to the new owner of the dominant land.