The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, called the servient tenement

AFFIRMATIVE: the right to do something on servient land

NEGATIVE: entitles holder to prevent servient landowner from doing something that would otherwise be permissible

Categories of Negative easements

(LASS!)

L: access to light

A: access to air

S: acecss to support

S: access to stream water from artificial flow

(minority of states include scenic view)

CAN ONLY BE CREATED EXPRESSLY BY WRITING SIGNED BY GRANTOR

Easement Appurtenant: benefits its holder in his physical use or enjoyment of his property

-"it takes two" 2 parcels are involved (dominant tenement derives benefit  from servient tenement, which bears burden)

Easement In Gross: confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land (servient land is burdened BUT no dominant tenement)

-right to swim in pond, lay power lines, etc.

Appurtenant easement passes automatically with the dominant tenement, regardless of wehther it is mentioned in conveyance

(Note that burden of e.a. also passes automatically with servient estate UNLESS new owner is BFP without any notice of easement)

Easement in gross not transferable unless for commercial purposes

Creation of an Easement

PING!

PRESCRIPTION

-may be acquired by satisfying the elements of adverse possession (COAH)

IMPLICATION

-previous use is apparent and parties expected it to survive division because it is reasonably necessary to the dom. lands use and enjoyment

NECESSITY

-no way out except over part of grantor's remaining land

GRANT

-writing that complies with formal elements of deed if more than year (SOF)--> "deed of easement"

set by the terms that created it

no unilateral expansion

Termination of an Easement

END CRAMP!

ESTOPPEL: servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced

NECESSITY: easements created by necessity expire as soon as the need ends (unless an easement attributable to necessity was nonetheless created by grant)

DESTRUCTION: of serveint land, other than through willful conduct of servient owner

CONDMENATION: of servient estate by eminent domain

RELEASE: a written release given by easement holder to the servient owner

ABANDONMENT: easement holder must demonstrate by physical action the intent to never use the easement again

MERGER: easement is extinguished when title to easement and title to servient land becomes vested in the same person (and not revised if title is later separated

PRESCIPTION: servient owner may extinguish easement by interfering with it in accordance with adverse possession elements (COAH)

Mere privilege to enter another's land for some delineated purpose (not subject to SOF) --> informal

-freely revocable unless estoppel applies

*NOTE: tickets create freely revocable license (but you can sue for breach of K)

ORAL easements that violate SOF create freely revocable licenses

estoppel bars revocation when licensee has invested substantial $ or labor in reasonable reliance on license's continuation

entitles its holder to enter the servient land and take from it the soil or some substance of the soil (timber, oil, minerals)

Profit shares all rules of easements

Promise to do or not to do something related to land

-NOT a grant of property interest but a CONTRACT or promise regarding the land

negative: promise to refrain from doing something related to land

affirmative: promise to do something related to land

depends on REMEDY plaintiff seeks

$ damages --> covenant

injunction --> equitable servitude

Elements Necessary for the Burden to Run

WITHN

-Writing: original promise between A + B in writing

-Intent: original parties intended that it would run

-Touch & Concern the Land: affects parties legal relations as land owners and not simply as members of community at large

(covenants to pay $ like homeowners association fees do NOT touch & concern land)

-HORIZONATAL & vertical privity

-Notice: A-1 had notice of promise when she took 

Nexus between original parties (A +B)

Requires either relationship:

-succession of estate (grantor/grantee relationship)

-landlord/tenant

-mortgagor/mortgagee

*so it would count if they purchased from each other

HARD TO ESTABLISH!!

Nexus betwen A and A-1

simply requires some non-hostile nexus, such as:

-contract

-devise (will)

-descent

*only time vertical privity is absent is if acquired through adverse possession

Elements for the BENEFIT to run with the land

WITV

W: original promise in writing

I: Intent

T: Touch & Concern

V: vertical privity

Promise that equity will enforce against successors

-accompanied by injunctive relief

To create (WITNES):

Writing, Intent, Touch & Concern, Notice

*no privity requirement

General/Common Scheme Doctrine:

court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant if these TWO ELEMENTS:

1. subdivider had general scheme of residential development which included D's lot

2. D lotholder had notice of the promise contained in prior deeds

Ways notice can be imputed to equitable servitude defendant

AIR

ACTUAL: had literal knowledge of promises in prior deeds

INQUIRY: Neighborhood conforms to the common restriction (lay of the land)

RECORD: form of notice imputed to buyers on the basis of public documents (courts split on this one)

*NY: subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor

Changed Conditions

The changed circumstance alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that entire area or subdivision has changed

-mere pockets of limited change not good enough

Elements of Adverse Possession

(possession --> title)

COAH

Continuous

-uninterrupted for the statutory period (NY=10)

Open & Notorious

-sort of possession a usual owner would make under the circumstances

Actual

-entry must be literal
Hostile

-possessor does not have consent to be there

NY: possessor must have good faith belief that land is his

One adverse possessor may tack on to his time his predecessor's time so long as there is privity - satisfied by any non-hostile nexus such as blood, K, deed, will, etc.

NOT allowed when there has been an ouster

Statute of limitations will not run against a true owner who is afflicted by a disability at the start of adverse possession

disabilities include: insanity, infancy, imprisonment, etc.

1: the land contract

2: the closing (deed becomes operative document)

must be:

-in writing

-signed by party to be bound (D)

-must describe land and state consideration

(if amount in contract is more than the actual size: specific performance with pro rata price reduction)

Exception to the SOF for land contracts:

PART PERFORMANCE!!!!!

2/3 to satisfy:

1. B takes possession

2. B pays all or part of price

3. B makes substantial improvements

-equity regards as done that which ought to be done

-once K is signed, B OWNS THE LAND! (subject to condition that he pays the price at closing)

With no fault of either party - B bears the risk of loss, unless K says otherwise

NY: so long as buyer is without fault, the risk of loss remains with the seller until buyer has title or takes possession

1. seller promises to provide marketable title at closing

*free from reasonable doubt, lawsuits, and threat of litigation

-adverse possession (even on part of the land), lack of record title, encumbrances, and zoning violations make title unmarketable

2. promise not to make any false statements of material fact

unencumbered fee simple free from servitudes and mortgages

(unless buyer has waived them)

Note: seller can satisfy outstanding mortgage or lien at closing with proceeds of the sale

YES, in majority of states

(seller is liable for material lies and omissions)

If K contains general disclaimer of liability (prop as is or with all faults), won't excuse seller from liability for fraud or failure to disclose

NO!

Caveat emptor (buyer beware!)

exception: implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor

THE DEED

passes legal title from seller to buyer

How does the deed pass legal title from seller to buyer?

MUST BE LEAD!

Lawfully executed and delivered!!

-must be in writing signed by grantor

(need not recite consideration, nor must consideration pass to make deed valid)

-must contain description of the land: does not have to be perfect (only unambiguous)

-satisfied when grantor physically or manually transfers deed to grantee (permissible here to use mail, an agent, or messenger)

-HOWEVER, does not require actual physical transfer of deed itself

*need PRESENT INTENT

(ask: did grantor have present intent to be bound?)

-rejection of deed defeats delivery

-if transferred with oral condition--> condition is DROPPED + VOID (delivery is accomplished) 

-can deliver by escrow (with instructions that certain conditions are met - after met title goes to grantee)

1. quitclaim deed

2. general warranty deed

3. statutory special warranty deed 

Contains no covenants

-grantor isn't even promising that he has title to convey

(worst deed!)

-but grantor does implicitly promise in land contract to provide marketable title at CLOSING

(any post-closing problems and grantor's off the hook)

Warrants against all defects in title, including those due to grantor's predecessors 

(best deed a buyer could hope for)

Present: breached at the time the deed is delivered

Future: not breached until grantee is disturbed in possession

(statute of limitations does not run until this future date)

*PRESENT*

1. Covenant of Seisin (grantor owns estate)

2. Covenant of Right to Convey (grantor has sound mind, age, etc. and no temporary restrains on alienation)

3. Covenant against encumbrances (no servitudes/mortgages)

*FUTURE*

1. Covenant for Quiet Enjoyment (wont be disturbed by 3rd party's lawful claims of title)

2. Covenant of Warranty (grantor will defend grantee against lawful claims brought by owners)

3. Covenant for Further Assurances (grantor will do what is needed in future to perfect the title if it turns out to be flawed)

Provided for by statute in many states, this deed contains two promises that grantor makes on behalf of himself (not predecessors!): 

1. promises he hasn't conveyed this estate to anyone other than grantee

2. Blackacre free from encumberances made by grantor

NY: called bargain and sale deed 

1) if B is a BFP in a notice jurisdiction, B wins (regardless of whether or not she records before A does)

2) If B is a BFP and we are in a race-notice jurisdiction, B wins if she records properly before A does 

NY=race notice 

Note: recording acts exists to protect BFPs and mortgagees

One who:

1. buys blackacre for value (any substantial pecuniary consideration!)

2. without notice that someone else got there first 

Note: does NOT protect heirs, devisees, donees (unless shelter rule replies) 

Three forms of notice a buyer may potentially be charged with:

AIR

Actual (B knows about A)

Inquiry (whatever an examination of blackacre would show from duty to INSPECT - so if he sees someone in possession of land he has notice)

NOTE: if recorded instrument makes reference to an unrecorded transaction - grantee is on inquiry notice of whatever a reasonable follow-up would show

Record (if A's deed is recorded properly)

"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless conveyance is recorded"

What kind of statute?

NOTICE!!

(if B is BPF, he wins! even if A records before him)

"Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded"

What type of statute?

Race Notice!!

B must be BFP and win race to record!

Must be recorded within chain of title, which refers to that sequence of recorded documents capable of giving record notice to later takers

In most states, chain of title established through a title search of the grantor-grantee index

One who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against.

Transferee "takes shelter" in the status of her transferor and steps into the shoes of the BFP even though she otherwise fails to meet requirements of BFP status.

*aims to protect B (BFP) - easier for him to transfer

Where a deed contains a missing grantor

EXAMPLE: "O sells to A, who does not record. Then A sells to B. B records A to B deed"

If a deed, entered into the records has a grantor unconnected to the chain of title, the deed is a wild deed INCAPABLE of giving record notice of its existence

*So, if O sells to C and C records, C wins in notice and race-notice if C records first

The conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a debt. 

DEBTOR = MORTGAGOR

CREDITOR = MORTGAGEE

Where a creditor lends O a sum of money and the parties understand that Blackacre is collateral, but instead of executing a note or mortgage deed, O gives creditor a deed to blackacre that is absolute on its face

Parole evidence is admissable to show parties intent 

If creditor sells to BFP X, X owns the land

(O can only proceed against creditor for fraud and sale proceeds)

Debtor/Mortgagor has title and right to possession

Creditor/Mortgagee has a lien

(right to look to blackacre if there is a default)

1. endorsing the note and delivering it to the transferee, or

2. executing a separate document of assignment

*if note endorsed and delivered, transferee is eligible to become a holder in due course (he takes not free of any personal defenses that could've been raised against original creditor - like lack of consideration, fraud, unconscionability, etc.)

-THUS, holder in due course can foreclose the mortgage despite the presence of these personal defenses BUT still subject to any "REAL" defenses maker might raise

REAL DEFENSES a transferee (holder in due course) may face (that could have been brought against original creditor)

MAD FIFI^4

Criteria for becoming a holder in due course

(you are eligible for this if original creditor endorses and delivers his note to you)

-note must be negotiable (made payable to named mortgagee)

-original note must be indorsed, signed by named mortgagee

-original note must be delivered to the transferee (no photocopy)

-transferee must take note in good faith without any notice of illegality

AND

-transferee must pay value for the note (more than nominal amount)

The lien remains on the land, so long as the mortgage instrument has been properly recorded 

ALL RECORDING STATUES APPLY TO MORTGAGES

(later buyer takes subject to properly recorded lien)

*doesn't matter if notice or race notice because bank (mortgagor) won race to record

If B has "assumed the mortgage" then BOTH

-B is primarily liable

-O remains secondarily liable 

If B takes "subject to mortgage" then B has no personal liability, only O

But if recorded, mortgage remins on the land. Thus, if O does not pay, mortgage may be foreclosed 

Mortgagee must foreclose by proper judicial proceeding. At foreclosure, land is sold and sale proceeds go to satisfying the debt. If less than debt, mortgagee bring deficiency judgment against debtor. 

If surplus, creditors w/ lessor priority paid IN FULL in order of priority  and then remaining surplus goes to debtor.

(NOTE: attys fees + expenses get taken off the top)

-terminates interests junior to the mortage being foreclosed but will not affect senior interests

*once foreclosure of a superior claim has occured, with the proceeds distrubted appropriately, junior lienholders can no longer look to blackacre for satisfaction 

-does not affect any intreest senior to the morgage being foreclosed. buyer at sale takes subject to such interest! buyer not personally liable BUT if senior mortgage not paid, senior creditor can foreclose against the land

(THIS IS WHY BUYER AT FORECLOSURE SALE HAS STRONG INCENTIVE TO PAY OFF SUPERIOR MORTGAGES!)

Necessary Parties to a foreclosure action:

must be joined 

-those with interests subordinate to those of the foreclosing party

-debtor/mortgagor

Failure to include a necessary party results in the preservation of that party's claim, despite the foreclosure and sale

THUS, if necessary party not joined, his mortgage remains on the land 

Creditor must reocrd (no priority without recording) 

-once recorded, priority is determined by the norm of first in time, first in right 

-purchase money mortgage: mortgage given to secure a land that enables debtor to acquire the land

*this has superpriority (if properly recorded)

Equitable redemption is univerally recognized up to the date of sale. At any time prior to the foreclosure sale, debtor has right to redeem the land and free it of the mortgage

(by paying off missed payment + interest + costs)

permits mortgagee to declare the full balance due in the devent of default

must pay full balance + accrued interest + costs to redeem

may a debtor waive right to redeem - NO!

(would be clogging the equity of redemption)

NOT IN NEW YORK!

gives debtor/mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occured (typically six months to a year)

-can pay foreclosure sale price

-mortgagor has right to possess during statutory period

effect of redemption: nullifies sale, redeeming owner is restored to title 

If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will only be liable if negligent

Strict liability does not attach to excavator's action unless plaintiff shows that because of D's actions, P's improved land would've collapsed even in its natural state

1. riparian doctrine

2. prior appropriation doctrine

Water belongs to those who own the land bordering the water course (riparians), who share the right of reasonable use of the water

one riparian will be liable if his or her use unreasonably interferes with others use

The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner

Rights determined by:

priority of beneficial use- a person can acquire the right to divert and use water from a watercourse merely being the first to do so

(first in time, first in right)

-any productive/beneficial use of the water, including agriculture, is succificient to create appropriation right

Groundwater

(water beneath the surface of the earth that is not confined to a known channel)

Surface Waters

(Those which come from rain, springs or melting snow, and which have not yet reached a natural watercourse or basin)

Common Enemy Rule: surface water is a nemesis (common enemy)

A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water.

Many courts prohibit unnecessary harm to other's land

Invasion of land by tangible, physical object

(to remove trespasser, bring an ejectment action)

Substantial and unreasonable interference with another's use and enjoyment of the land

Does NOT require tangible, physical invasion (odors and nose could give rise to nuisance claim)

-no nuisance when problem is a result of hypersensitivity

Government's 5th amendment power to take private property for public use in exchange for just compensation

explicit taking = act of governmental condemnation

implicit/regulatory taking = gov. regulation that is not intended to be a taking, has the same effect

Government must either:

1. compensate owner for taking, or

2. terminate the regulation and pay owner for damages that occured while it was in effect

pursuant to police powers, government may enact statuses to reasonably control land use

1. undue hardship

2. variance won't decrease neighboring property values

Those emenities government seeks in exchange for granting permission to building

Must be reasonably related, both in nature and scope, to the impact of proposed development