Property Rules 4

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Property Rules 4
2010-07-16 19:28:34
Disputes about land use

Disputes about land use
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  1. Easement appurtenant vs in gross
    Presumed to be appurtenant unless clear facts to the contrary.

    Easement in gross occurs where easement meant to benefit a particular person, as opposed to the land.

    Example: A owns lakefront property and grants B, who lives in a town across the lake, an easement to gain access to the lake at a certain point on A’s property. A created an easement in gross because it benefits B, not any land owned by B.
  2. Types of easements
    • Express
    • By necessity
    • By implication - prior use continues
    • Prescription - adverse possession
    • By estoppel
    • Negative - must be express.
  3. Termination of easement
    • Release
    • Merger - easement holder obtains fee simple to servient estate
    • Severance - holder attempts to sell appurtenant easement.
    • Abandonment
    • Etc.
  4. Whose duty to maintain an easement?
    Owner of easement
  5. Requirements for covenants running with the land:
    • In writing
    • With intent to run with land
    • Touch and concern land
    • With notice
    • Horizontal and vertical privity
  6. Requirements for equitable servitudes:
    • Intend to be enforceable by and against successors in interest
    • With notice
    • Touch and concern land.
  7. Requirements for implied reciprocal servitudes:
    • Intent to create servitude on all plots of common development
    • Actual, record, or inquiry notice

    In NY, subsequent buyers not deemed to have RECORD notice.
  8. Private nuisance
    substantial unreasonable interference with another individual’s use or enjoyment of his property

    • substantial = is offensive, inconvenient, or annoying to the average person in the community
    • unreasonable = injury caused outweighs usefulness of defendent's actions
  9. Public nuisance
    Unreasonable interference with the health, safety, or property rights of the community.

    Private plaintiffs must show a different kind of harm than that suffered by the rest of the community.
  10. Remedy for nuisance
    Usually damages = depreciation in property value, personal injury

    Injunctive relief. Court balances potential hardship on the two parties.