Easements
What do you have to show for an Easement by Necessity?
1) Common Ownership
2) Severance
3) Landlocked Parcel
4) Strict Necessity
What is "spot zoning?"
A zoning decision that singles out a small parcel of land for use in a manner inconsistent with the other predominant land uses in the area primarily for the benefit of the owner and not the general public.
What is the remedy for breach of a real covenant?
Money damages
What is the remedy for breach of an equitable servitude?
An injunction
What must a lender show to obtain a deficiency judgment following a foreclosure?
That every aspect of the sale was "commercially reasonable."
What do you have to show for an Implied Easement (Prior Use)?
1) Common Ownership
2) Severance
3) Use was apparent, continuous, and permanent
4) Reasonably Necessary
What is the rational basis test for land use regulations?
A land use regulation will be upheld UNLESS it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”
(This is the Euclid test.)
What are the requirements for the burden of a real covenant to run?
(1) writing satisfying statute of frauds;
(2) the original parties intend the restriction to run;
(3) touch and concern;
(4) horizontal privity; and
(5) notice to the burdened party at the time they purchase.
What are the requirements for the benefit of an equitable servitude to run?
(1) writing satisfying statute of frauds;
(2) the original parties intend the restriction to run; and
(3) touch and concern.
What elements must a claimant prove to obtain an easement by prescription?
(1) Adverse use of another’s land.
(2) Which is continuous and uninterrupted for the statutory period [the amount of time varies by state]
(3) Which is actually known to the owner of the land or is “open and notorious” such that the owner should have known.
(4) There is “a reasonably identified starting point, ending point, line, and width of the land that was adversely used, and proof of the manner or purpose for which the land was adversely used."
What must a property owner show to qualify for a zoning variance?
(1) That the effect of the zoning ordinance is to burden property with an unnecessary hardship
(2) that is unique to the property;
(3) that the hardship was not self-inflicted;
(4) that the granting of a variance will not have an adverse impact on the public health, safety and welfare; AND
(5) that the variance sought is the minimum variance that will afford relief.
What are the requirements for the benefit of a real covenant to run?
(1) writing satisfying statute of frauds;
(2) the original parties intend the restriction to run; and
(3) touch and concern.
What are the requirements for the burden of an equitable servitude to run?
(1) writing satisfying statute of frauds;
(2) the original parties intend the restriction to run;
(3) touch and concern; and
(4) notice to the burdened party at the time they gave value.
What must be present for a foreclosure sale to be set aside?
Usually (1) a sale price so low as to "shock the conscience" or amount to a fraud; and (2) a procedural irregularity.
(A sale prices as low as 20% of fair market value may not "shock the conscience" of the court.)
What are the elements of an easement by estoppel?
(1) Owner permits claimant to use the land;
(2) under circumstances in which it is reasonably foreseeable that the user/claimant will substantially change position, believing that permission will not be revoked;
(3) an actual change in position in reasonable reliance on that belief; and
(4) Injustice can only be avoided by the establishment of servitude
What must a person show to convince a court to declare a restriction unenforcable due to "changed conditions?"
That “[1] the original purpose of the restriction has been materially altered or destroyed by changed conditions, and
[2] that a substantial benefit no longer extends to [the other homeowners] by enforcement of the restriction.”
How do you determine what needs to run in the law of covenants?
If the party seeking to enforce the restriction is a successor to the original promissee, then the benefit must run. If the party against whom the restriction is being enforced is a successor to the original promissor, then the burden must run. If both are successors, then both must run. If neither are successors, then nothing must run and contract law applies.
What are the elements of an equitable servitude implied from a common plan or scheme?
(1) Where a vendor embarks on a common plan or scheme to build a development with mutually enforceable restrictions and
(2) vendor sells some lots with explicit restrictions; then (as a result of (1) and (2),)
(3) vendor's retained land becomes subject to the same restrictions and
(4) future buyers of that land, with notice of the scheme, are bound by the restrictions
What are the covenants contained in a warranty deed?
(1) Covenant of seisin;
(2) covenant of right to convey;
(3) covenant against encumbrances;
(4) covenant of warranty;
(5) covenant of quiet enjoyment; and
(6) covenant of further assurances.
X owns Whiteacre and has an easement appurtenant to Whiteacre over his neighbor's land. X begins using the easement to access both Whiteacre and Redacre, which is other land X owns located next to Whiteacre. If a court enters an injunction, what are the possible terms of the injunction?
X may not use the easement at all until the uses benefiting Whiteacre are distinguishable from the uses benefiting Redacre; or X may use the easement to access Whiteacre but not Redacre.
Whas are the Penn Central factors for determining whether a regulatory taking has occurred?
(1) Economic impact on the claimant; (2)The degree of interference with distinct,investment-backed expectations; and (3)The character of the government action.
(These are factors to be balanced -- not elements that must all be met.)
A and B are neighbors. The agree to a written restricftion governing all of their land. B sells his land to C, who violates the restriction. A sues C to enforce the restriction. What must run for A to win?
The burden must run for A to win. Although both parties' land is restricted (and therefore both benefited and burdened), in this lawsuit, C is violating, is the defendant, and is a successor to the original party to the agreement. The benefit need not run because A, the plaintiff, is a party to the original agreement.
What must be done with a deed in order for it to convey title?
It must be delivered with intent that it be immediately effective to transfer an interest in land to the grantee. He must simply be a bona fide purchaser, which means that he has given value without notice of the conflicting interest.
(Effective delivery of a deed requires that the donor intends an IMMEDIATE transfer of a property interest.)
What is guaranteed with a General Warranty Deed, Special Deed, and Quit Claim Deed
They have the same six warranties, but with the general warranty deed, the grantor warrants against all of the covered title defects, whether or not caused by the grantor.
With the special warranty deed, the grantor only warrants against the covered defects if they were caused by the grantor himself.
With a Quit Claim Deed none. The grantor simply conveys whatever interest she has, but makes no warranties that she has any interest at all.