Real Estate Law - Chapter 4

real property interest

any fee owned land, mining concession or leasehold, easement, right of way, concession, or other real property right

interest

a person's legal right or claim in something

in land, is the right to do something with the land, and includes freeholds, leaseholds, mortgages, covenants, and easements

easement

an interest in land that gives the owner the right to use real estate owned by another for a specific purpose

• power company’s placing lines across land they don’t own

not an inherent natural attribute of ownership

non possessory interest in land (don’t possess)

who owns easement

person who has right to use the land of another

license

a privilege to enter the premises for a certain purpose, which does not operate to confer on, or vest in, the licensee any title, interest, or estate in such property

• ticket to ball game

profit a prendre

an interest in the land of another that confers rights of use and removal of the profits on the soil

• right to hunt deer on someone else’s land

restatement of the law of property

state the law, note emerging trends, and, at times, suggest changes in the law

easement definition - restatement

• the owner of the easement is entitled to use and enjoy the land on a limited basis

• the easement owner is entitled to protection from third parties in the use and enjoyment of the land

• the easement owner is not subject to the will of the possessor of the land, as would be the case with a license

• an easement arises from facts other than possession of land by its owner

• the easement is capable of conveyance

affirmative easement

allows rights to use land

• interest in land or personal right

• driveway across property for access

negative easement

prevents landowners from making certain uses of their land

• interest in land or personal right

• right to receive air, wind, and sun (don’t get right from common law, some statutes)

conservation easement

negative easement that limits potential development or other property uses to preserve open space, natural resources, wildlife, and similar land uses in exchange for tax savings on value of “use” conveyed away

purchase of development rights

a type of conservation easement conveyed to a local governmental entity in which landowners agree to restrict the use of their land in exchange for a reduction in taxes

dominant estate (dominant tenement)

the land that benefits from the easement on another property; possessor of dominant estate is entitled to the benefits of uses authorized by the easement

servient estate (servient tenement)

the land that is burdened by an easement appurtenant or an easement in gross

easement in gross

an easement that grants a personal right to attach to a particular individual or entity rather than to the property itself

• granted independent of land ownership

• has servient estate, but no dominant estate

• bob gives sue right to use trails on his property, but right is “personal to sue and not appurtenant”

easement appurtenant

an easement that benefits a particular tract of land; is incapable of existence separate and apart from the particular land to which it is annexed

• one neighbor allows another to run sewer line across land

exclusivity

exclusive right = exclusive easement in gross, can apportion

• non exclusive = no apportion

• could also be profit

how to create easements

• by agreement of parties

• by operation of law

4 categories of easements

• express conveyance

• implied

  • reference to easement or plat

  • prior use

  • necessity

• prescription

• estoppel

express conveyance

a written instrument in which the grantor transfers an interest in land AND is recorded like a deed

• BEST way

express reservation

• a right created and retained by the grantor AND is recorded like a deed

implied easements

• from a conveyance describing the premises as bounded by the easement or referring to a plat or map

• from prior use at the time of ownership of land is transferred

• from strict necessity of use

reference to easements or to plat

can be created by reference to a road or right-of-way

implied easement from prior use

• prior use must be apparent at time of transfer

• continuous, perm, not temporary

• prior use reasonably necessary

• one person owned both prior

implied easement of necessity

an easement that arises by operation of law after land is divided if one of the parcels is inaccessible. easement necessary despite no prior use

• elements:

• original common owner

• necessity exists when ownership is severed

• strictly necessary

prescriptive easement

a right to use another’s property that is inconsistent with the owner’s rights and that is acquired by a use - open and notorious, adverse and continuous - for the statutory period; like title by adverse possession

• adverse user gets an easement, not title

prescriptive easement - adverse

hostile use

• when a person uses land in a way that does not recognize the rights of the land’s true owner

open and notorious

• must have notice or ability to have notice

continuous

• uses regularly

• uninterrupted use without judgement or owner action

• exclusive use, make claim on his own

easements by estoppel

when a person is prevented from denying or asserting anything to the contrary of that which has been established as the truth, either by judicial or legislative acts or by his own expressed or implied deeds, acts, or representations

development of the dominant estate

in determining the extent of an easement appurtenant, courts assume “that the parties to the conveyance contemplated a normal development” of the dominant estate

• horse and buggy > auto, especially if have been doing

repair of easement

used by servient owner

• Who has the duty to repair the easement?

  • Person who is using the easement 

• May the servient owner use the easement?

  • Yes but can’t get in the way of its use 

person with license generally has…

personal, revocable, non-assignable permission to do one or more acts on another person’s land

license differs from an easement

easement is an interest in land and normally must be created by a written instrument

license is a privilege, may be created by any method that shows the landowner’s assent

differs from a lease - licensee does not have exclusive possession of the land

situations where a license is considered irrevocable

1. when the licensee has exercised the license by expending capital and labor in reliance on the licensor’s promise

2. a license is coupled with an interest

• irrevocable license granted to enter the licensor’s property and exercise the legal rights he possesses in the licensor’s property

• best buy has license to enter your home and get your computer when you default

3. some states have enacted statues specifying that certain licenses are irrevocable

patterson v paul

issue: was the easement affirmative or negative

holding: easements were affirmative and not subject to the 30 year limit

analysis: easements provide the defendants with an affirmative right to enter the plaintiff’s property to trim and top trees, so it’s affirmative. affirmative easements are not subject to the statute’s 30 year limit

• court reviewed easement language permitting the defendant to “trim and top trees and other vegetation within the easement areas so as to clear and maintain an unobstructed view across the entire view easement areas”

  • “clear” did not permit the wholesale removal of vegetation

fontainbleau hotel corp v forty-five twenty-five

appeal from an injunction restraining construction

issue: Whether a landowner has a legal right to unobstructed light and air from a neighboring property where construction will interfere with the light and air on the beach

holding: in the absence of some contractual or statutory obligation, there is no legal right to the free flow of air and light across adjoining property

analysis: said light and air were implicitly granted for more than 20 years, light and air aren’t granted through common law. plaintiff relied on maxim that one must never use his own property in such a way as to do injure rights to his neighbor

maccaskill v ebbert - easement by necessity

issue: whether an easement by necessity may also arise when the severed property has legal access but that access is physically impassable?

holding: trial court said no. reversed. summary judgement is appropriate

analysis: landlocked, but could have climbed mountain. for necessity, must show (1) the 2 parcels were once under common ownership, (2) necessity for the easement existed with the parcels severed, and (3) the present necessity is great. court found a dispute of fact

US on behalf of the zuni tribe of new mexico v platt - easement by prescription

issue: Whether the Zuni Tribe acquired a prescriptive easement allowing it to cross Earl Platt's land as part of its religious pilgrimage

holding: Yes. The court held that the Zuni Tribe had established a prescriptive easement across Platt's property for its religious pilgrimage

analysis: had actual possession for period of time every 4 years, continually done this for hundreds of years, established actual and continuous. did not hide the pilgrimage and went across his property

reyna v ayco development corp - duty to maintain easement

issue: Did Ayco have a duty to protect the child from the dangerous electrical equipment on its property?

holding: summary judgement for Ayco

analysis: easement said city had right to enter, and place construct, repair, and maintain electric. city held the easement. Ayco had no right to control or to remedy any condition in cabinet or that would encroach on city’s rights - no duty of reasonable care

yarde metals v new england patriots limited partnership - licensee

issue: Did Yarde have a right to keep renewing its Patriots season tickets after 20 years of having them?

holding: No. The court held that Yarde did not have a contractual right to renew its season tickets. The Patriots could terminate the season-ticket relationship

analysis: ticket said purchase does not entitle purchaser to renew subsequent year. ticket to a sports event creates nothing more than a revocable license