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4. License? Irrevocable? o Does it appear to be an easement but for a lack of writing? o Has licensee spent substantial $ in reliance 5. CCR - Covenant? must be in writing as per SOF Affirmative or negative? Intent to create a CCR running w/land? Is there privity (reqd old time, now need only notice) Was buyer on notice? o Actual or constructive? Binding on future owners of either parcel unless intent otherwise is shown T&C?
6. Was the easement or covenant terminated or amended? Express Unenforceable for failure to meet elements Merger O owns both ST & DT Abandonment w/ requisite intent to abandon Prescription Abuse exceeding scope Mutual agreement Changed conditions ED?
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Scope i. Prescriptive determined by look at the use that took place during the statutory period ii. Development of dominant estate court will allow a use that increases due to the normal, foreseeable development of the DT 1. Excessive use is use that unreasonably interferes with the use of the ST a. Viewed in light of the parties original intent/understanding re use iii. Use for benefit of addl property DT normally not allowed to extend use to the benefit of another piece of land, even if he is the owner of that other parcel iv. Servient Owners right to relocate easement J-SPLIT 1. CL approach path of easement is fixed, and SO may not relocated even if no burden on DO 2. Modern approach SO may relocate if doing so doesnt materially inconvenience the DO G. Repair and maintence i. SO not obligated to maintain unless expressly provided ii. DO has right to maintain implied if that maintenance is compatible with the intended use of the easement and does not unreasonably interfere with SOs use of SE 1. SO must contribute to costs of maintenance in the amount proportional to the servient holders share of overall usage benefit from the repairs if all benefit of using easement enjoyed by easement holder, SO will not have to contribute and Do cant collect H. Transfer and subdivision of easements i. Transfer of burden 1. When the title to the servient estate is transferred, the burden of the easement remains with the property ii. Transfer of benefit 1. When the benefit of an easement runs with the land depends on whether in gross or appurtenant 2. Appurtenant normally passes with the transfer of the DE a. Deed is silent = applies even if the deed does not mention the easement b. Subdivision = each lot will be permitted to benefit from easement unless the result is an extreme increase in the burden to the SE 3. In gross a. CL not transferrable b. Modern view made easier to transfer i. Commercial easements: assignment of commercial easements in gross, that is those intended for economic purposes are in almost all courts permitted b/c of expectation of continuation of business ii. Noncommercial easements: rarely couple juris, but most not permit assignment of these, but never when the relationship of parties or lack of compensation for easement suggest lack of intent to allow assignment Licenses A. Right to use the land of another that is revocable at the will of licensor B. Not required to satisfy statute of frauds C. Exceptions to revocability i. Oral license acted upon 1. A license is irrevocable if its use would have been an easement except for failure to meet statute of frauds 2. When the licensee makes substantial expenditures in reliance on the promise that the license will be permanent or long duration
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B. Express in document or terms C. Unenforceable D. Merger: The dominant and servient estates are acquired by the same person. As a result, the servitude is
terminated as you cannot have easement over you own land. THE EASEMENT DOES NOT SPRING BACK INTO EXISTENCE IF LAND IS SOLD OFF.
Abandonment: Mainly used in easements, the key is that non-use alone will not allow for termination. There
VI.
must be an intention to abandon which is shown on objective basis, i.e. an express statement of intent. 1. Where an easement has been created but not used, the owner of the ST may fence his land and such use will not be deemed adverse to the existence of the easement until a. The need for the right of way arises b. A demand is made by the owner of the DE to open the easement F. Prescription (A.P.): If held for a period of time, it may be adversely possessed and destroyed by the doctrine of merger. i. Maintenance of a fence or structure across AN EXISTING RIGHT OF WAY which bars its use as such for than the prescriptive period will terminate the easement by AP. Here there is no existing right of way it was never opened. G. Abuse of the Easement: One exceeds the scope of the easement and therefore forfeits the easement but this is not really automatic anymore. i. Forfeiture H. Mutual Agreement: Easiest and most common way of terminating servitude. I. Changed Conditions: The benefit to the whole has to disappear. J. Eminent Domain: The courts are split as to whether enforceable. If it is an easement, then group can clearly condemn and destroy the easement and must pay FMV for it. If a restriction, there may not be a need for payment of damages. (A minority of courts hold that restrictive covenants were not property interest for which just compensation must be paid. K. Acquiescence L. Defense arguments against termination include: 1) There was no merger of dominant and servient estates; 2) Easements created by grant are not lost by non-use alone; 3) Where an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it, not just non-use (non-use + intention = fact finder); 4) Because of erection of some fence or barricade for more than prescriptive period, the easement was extinguished by adverse possession 5)latches M. Amendments modify the servitude Nuisance A. Private a nontrespassory invasion of anothers interest in the private use and enjoyment of land i. Elements: intentional, nontrespassory, unreasonable, and substantial interference with the use and enjoyment of the s land 1. Interference with s use and enjoyment of land must substantial AND unreasonable a. Unreasonable = determined by balancing of landowners interest i. When the gravity of harm to s U/E outweighs the social utility of s conduct or the condition on s property b. Interference = unreasonable when gravity of harm outweighs social value of the activity alleged to cause the harm 2. s conduct must be either 1) intentional and unreasonable OR 2) negligent, reckless, wanton or unusually hazardous; AND a. Intentional when actor knows or should know that the conduct is causing a substantial and unreasonable interference b. Unintentional when negligent, reckless or abnormally dangerous activities can lead to these i. Negli/reckless falls below expected standards of conduct ii. Abnormally dangerous activities high standard of care strict, or nearly so, liability 3. s conduct must be nontrespassory; 4. The must have an interest in land that is injured by the conduct a. Short term tenancy is sometime enough to meet this element B. Public conduct that causes public injury generally as general rule only govt can enjoin, unless a particular owner had a unique injury may be statutory i. Elements: 1) populous area, 2) dangerous or unhealthy for a specific reason to public at large
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