Property Rules 4
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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.
Types of easements
- By necessity
- By implication - prior use continues
- Prescription - adverse possession
- By estoppel
- Negative - must be express.
Termination of easement
- Merger - easement holder obtains fee simple to servient estate
- Severance - holder attempts to sell appurtenant easement.
Whose duty to maintain an easement?
Owner of easement
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
Requirements for equitable servitudes:
- Intend to be enforceable by and against successors in interest
- With notice
- Touch and concern land.
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.
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
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.
Remedy for nuisance
Usually damages = depreciation in property value, personal injury
Injunctive relief. Court balances potential hardship on the two parties.
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