Property II - Cohen

1) Severance of Common Title

2) Seperation of title after use was continuous to show degree of permanency

3) Reasonable Necessity (necessary to beneficial enjoyment of land).

    Requires Quasi Easement:  Continous, Apparent, Necessary
              GRANT - Reasonable Necessity
              Reservation - Strict (maybe reasonable)
       

Implied Reservation - Sells servient tenement, retains right of easement over it

Implied Grant - Sells Dominant tenement, buyer retains right of easement of seller's servient tenement

Commercial - Assignable if parties intend it to be
      Must be One-Stock (changes made require consent of all)

Non-Commercial - Not Assignable - MODERN, assignable unless parties should not have reasonably expected it to be

Nature - From Horses to Cars
Intensity - using property for more than what was granted
Size - how big dominant estate is, or may become

Misuse - using easement to access land that is not the dominant parcel
        Rule - Easement appurtenant cannot be used to reach an adjoining parcel to the dominant estate.
        Remedy - INJUNCTION (must show actual and substantial injury)

Reasonable Changes, consistent with original grant are allowed.  Changing scope is not.

Abandonment -
    1) Non-Use AND
   
    2) Acts which show present intent to relinquish easement
                  OR
    3) Purpose inconsistent with future existince

servient tenement and dominant tenement became owned by the same person – easement is extinguished

Serviant owner blocks easement for the SOL, and Dominant owner does not bring suit.

servient tenant takes inconsistent action with continued existence of the easement.
        Elements: Must be continuous, open, and notorious.
            Mere non-use of easement will not cause it to terminate by prescription

servient tenant takes inconsistent action with continued existence  of the easement in reasonable, foreseeable reliance on belief that dominant tenant won’t use easement anymore.

Inquiry - knowledge of facts would give rise to further inquiry
Record - reflected by public record
Reputed - actual knowledge on part of your legal representation

Easement is in writing and is released, must be in writing because it is a transfer of land back

Govt. owns servient estate, uses power of eminent domain to terminate easement – must compensate

Defeasible Easement -
Terminates at stated time

A promise or agreement to do or refrain from doing something on the land that benefits or burdens not only the original promisor or promise, but also benefits or burdens their successors in interest.  Remedy for real covenant is damages, while under equitable servitude it is an injunction.

1) Written K.
2) Intent of parties for benefit and burden to run
3) Touch and Concern - Bigelow, Neponsit
4) Horizontal Privity - Requires transfer of land
5) Strict Vertical Privity - successor must have entire estate
6) Notice to burdened party , record, inquiry, imputed

NO Horizontal Privity
NO Notice
Relaxed Vertical Privity

Same of RC , but NO privity

1) Burden or Benefit affect value of land
2) Close related to land, could be part of deed

1) Substantially alter rights normally associated with prop. ownership
        for cts. to decide

When a vendor (developer) embarks on a common plan or scheme to build a development with mutually enforceable restrictions

1) Vendor sells some lots with restriction
2) Buyers of retained land (with NOTICE of scheme) are bound

1) Purpose of rest. thwarted.
2) No value in enforcement.
3) Character of land surrounding area has changed.

1) Owners have acquiesced to violations of covenants
2) Intent to relinquish all right to title claim in RC
3) So general as to frustrate original purpose

Unity of ownership of benefit and burden

Must be written and recorded

If the defendant has relied upon the plaintiff's conduct making it inequitable to allow the plaintiff to enforce the servitude.

D relies upon P’s conduct making it inequitable to allow P to enforce the servitude

Benefited party (dominant owner) has acted in such a way that a reasonable person would believe that the covenant was abandoned and the burdened party (servient) acts in reliance, the benefited party is estopped from enforcing the covenant.

Use which violates a servitude and which is maintained openly, notoriously, and adversely to a person entitled to enforce the servitude for the prescriptive period.  Terminates (or modifies the servitude to the extent of the violation.

May not enforce restriction if he has unreasonably delayed to the prejudice of the burdened party

Person may not enforce a restriction he has violated

A restriction which by its terms only lasts for a specified period terminates at the end of that period.

Termination through exercise of eminent domain.

Actual or Constructive

Master Deed Reasonableness Rule (Nahrstedt):
Rules are unreasonable if they are: wholly arbitrary, violate a fundamental public policy, or impose a burden on affected land that far outweighs any benefit

      Property owner has the burden of showing unreasonableness
      upheld unless “unreasonable”, presumed to be reasonable
            Policy: courts are deferential, associations can enforce without fear, and people bought with knowledge of these rules

Created by governing board, not in master deed
1)Board must act for the purpose of the cooperative
          -acting in its official capacity

2) Must be in good faith
          - no self-dealing (no personal gain, except benefit to the co-op)

3) Must be in scope of authority
          - doing something board is empowered to do

Should be upheld even if the display some degree of unreasonableness

Later in time Bona Fide Purchaser is stronger in right
          Bona fide Purchaser
                -Good faith purchaser with
                -NO notice of the prior interest
Recording acts policy
          -Provides strong incentive for earlier in time purchaser to record interest
          -Better permanent records
Old Rule: First in Time

To be BFP you need to record 1st.  Notice does not matter

To be BFP you need to pay value while having no notice of earlier purchasers

To be BFP you need to pay value while having no notice of earlier purchasers AND records first

Documents a purchaser of land is expected to discover and inspect

A recorded deed not in chain of title, usually because a previous instrument connected to the chain is not recorded

all encompassing purchase, other lands not identified.
NOT enforceable

Specificity: should describe the land conveyed with sufficient specificity so that the specific land conveyed can be identified

Route of title or 40 years.
Exception: RR and Public Utility Easements. 

An interest in real prop. Given as security for performance of an obligation, pay may set forth in promissory note
Borrower – mortgagor, Lender – mortgagee

lender seizing property to sell to recoup losses, termination of borrowers interest in property

lawsuit where court terminates mortgagor’s interest in the property – including equity of redemption

Mortgagee terminates mortgagor’s interest pursuant to the terms of the mortgagee and statute 

Mortgagor’s right to regain title from buyer of foreclosed property by paying price obtained at foreclosure sale

value of the mortgagor’s interest in property, value minus balance sue on mortgagor

mortgagors right to regain title from the mortgagee by paying off the promissory note
POLICY: Prevent injustice, preserve equity – creates uncertainty of title for mortgagee (lender)

if after sale of foreclosed property, money is still owed, mortgagee may seek money stilled owed

Categorical Rules:
1. Permanent Physical Occupation is a taking no matter how small.
2. If Regulation denies all economic benefit it is a taking.
      Unless: It violates a common law Background Princ.
        Old Rule: unless nuisance abatement

3. Balancing Rule (Penn-Central)
    Significance of harm prevented v. econ. Loss on claimant
        1) Econ. Impact on Claimant
        2) Dir. Investment-backed expectations
        3) Char. Of Gov’t Action (privacy inv, nuisance)   

Figuring out what fraction of owner’s interest has been taken.

prevent gov’t from forcing some people from bearing the burden alone, when it should be born by the public ago.

How much is society being benefited and how much is the owner being benefited by being in that society.  Look for impact on small number.

Personal to an individual/entity (no dominant estate)

Benefits particular parcel (dominant parcel) and goes to whomever owns the lands

Unreasonable to request written license when oral given

revocable at will of licensor, even when licensee expends money.

• If P is a successor to the orig. party – benefit must run

• If D is successor to orig. party – the burden must run
• If neither are successors – neither benefit nor burden must run
• If both are successors – both benefit and burden must run

Gov't power to regulate to promote...health, safety, welfare, morals
Always an implication that regulations exist.