Copyright, MCMLXXXVII, All Rights Reserved, Charles E.
Brown, Attorney at Law
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B. Non-estates. Called so because it does not give the
1) The easement. The right to go on someone else's
land and do some limited specific thing there.
a) If we get an easement problem on the exam be
sure to draw a picture.
b) An easement is a right to use someone else's
land for a very limited express purpose.
c) The servient land is the land which the
easement runs across. The other piece of land
is the benefitted land and is called the dominat
land. Every easement has servient land but not
all easements have dominant land. When it does
we say the easement is appurtenant to the
dominant land. An easement which is not
appurtenant is called an easement in gross
(these are not transferable by the owner unless
for a commercial use). Example: railroad
easements throughout the country--can't point to
a specific piece of land which is benefitted, so
this is an easement in gross, and would be
transferable since for a commercial use. An
easement to go fishing on somebody's land would
be an easement in gross but would not be
transferable, and would vanish upon death.
What happens when an easement is transferred? An
easement appurtenant goes with the dominant land
when transfered. The BFP buying the servient
tenemant would purchase subject to the easement
a) Unrecorded, or
b) Not visible
There are four ways to create an easement:
a) Express grant complying with the Statute of
b) Express reservation. This occurs when one
party owns both the dominant and servient
tenemants and reserves an easement for himself
when he sells the servient property.
2) Implied easement
a) This always starts out with a common owner
who uses one part of the land to benefit the
other part. Common owner then decides to keep
one lot and sell an adjacent lot.
b) Common owner must prove:
(i) Lots were in common ownership
(ii) There was a quasi-easement
(iii) The quasi-easement was apparent
(iv) The easement is necessary to the
dominant tenement (lot would lose most or
all of its value if it did not have the
c) If the common owner keeps the servient
tenement and sells the dominant tenement, the
courts are more lenient and only require
3) Easements of necessity.
a) Found in landlocked tenenments surrounded by
other pieces of property. Two requirements:
(ii) At one time, both dominant and
servient tenements were under common
b) The easement of necessity is limited to
(i) Access, and
c) The easement will only last as long as the
4) Prescriptive easements
a) Like adverse possession, only not possession
but limited use.
b) At common law, 20 years (now 10 years)
c) Open and continuously (regularly)
d) Must do it without the true owners
permission. The ways in which the owner could
keep the estate holder from getting permission
(i) Sue and get an injunction
(ii) Block off the road and interrupt his
(iii) Give him permission (a license)
The dominant tenement holder must use the easement in
the scope it was first used in the origin of the easement.
The law does make allowances for easements expanded through
prescription. The law does allow reasonable changes for
changing technological reasons. But the dominant holder
still cannot change the basic use. Other scope problems:
1) Glom. Cannot glom more land onto the dominant land.
Example: lot six buys lot five. Cannot use the easement now
to serve lot five.
2) Subdividing the dominant land. The subdivider can
use the easement if the burden is not unreasonable. For the
exam we must know that the test is reasonable.
How can an easement end? An easement will always be
presumed to be perpetual unless the exam says otherwise.
1) An easement will end if on person buys both the
servient and the dominant lands. Once the easement is gone,
it is gone forever.
a) Must quit using the land a long, long time.
b) There must be some further evidence of intent to
abandon it. Example: the owner of a garage makes
it into a bedroom.
c) Prescription. Example: land blocked off for
twenty years without the dominant landowners
d) Owner of easement conveys it back to the owner
of the servient land. Again, this should be in
writing. If not in writing, it will still exist if
the servient landowner relies on it (estoppel--must
have a representation that is reasonable and
detrimentally relied upon).
2) Profits. The right to go on someone elses land
3) Covenant. The right to control the way someone
else uses their land.
4) The right to collect rents. This is considered
an interest in land.
Licenses v. Easements. An easement is an interest in
land and a license is not.
A license is permission to go on land and it can always
be revoked by the landowner. Sometimes when a license is
revoked it breaches a contract, the point is if someone
prevents you from using your easement you can get damages and
an injunction because as an interest in land it is
specifically enforceable. For a license, perhaps you can get
If an easement is express it must be in writing. A
license never has to be in writing because it is not an
interest in land.
Oral grant of an easement, paves driveway. Estoppel.
Suppose you've a right to use land and government
condemns the land, which would you rather have your interest
Covenants running with the land. Draw a map and label.
X promises to neighbor Y in writing for valuable
consideration not to raise pigs on land. X later raises
pigs. Y can get damages or an injunction because this is an
interest in land. In this example, there is no transfer, so
on the exam don't waste time babbling about covenants running
if it can be enforced between origin.
X's land is the burdened land; Y's land is the
Sometimes the fact pattern gives you reciprical
promises. Figure out which one is going to be violated.
That is the one with the burdened land. The land which is
enforcing the promise is the benefitted land.
For a successful lawsuit, the plaintiff must own the
benefitted land, and the defendant must own the burdened
If only benefitted land is sold; only this land must be
checked to see if the covenant ran.
Rules for covenants to run at law v. at equity.
Question: what does the plaintiff want? Damages or
injunction. The question will tell you. This tells us which
rules to follow.
A covenant at law is an equitable servitude.
Rules for covenants at law:
1) The covenant must touch and concern the land (have
something to do with the real estate).
Example: a promise is made that the land will only be
used as a single family residence. The benefitted party owns
a candy store and gets X next door to promise not to open
Can go either way: concerns business, concerns the
Covenants to pay dues to keep comm areas up. Question:
does a covenant to pay run with the land? Answer: every
case says yes. Rationale: when you pay money it goes to
improve property and the owners have lost a use.
2) The covenant must be intended to run with the land.
If it touches and concerns the land the courts will assume
this unless expressly says otherwise.
3) Privity of estate. The covenant was placed in a
deed in either the benefitted or burdened land. Usually
incorporated by reference.
4) Privity is necessary for burdened land. So if
burdened land not sold, we don't need privity.
For covenants to run in equity, we need:
1) Must touch and concern the land
2) Must evidence an intention that the servitude exist
3) Won't enforce the covenant unless the person who
bought the burdened land had notice of it:
a) Someone told them
b) It was recorded
c) Defendant may have been able to tell by looking
at the common scheme of the neighborhood
Developer wants to put a restriction on a neighborhood,
"only single family developments". One owner then wants to
build a gas station. Who can enforce? The developer if he
still owns the lots.
Later another owner wants to enforce. The other owners
can enforce the servitude if there was a common scheme or
It is also possible to find that a reciprocal negative
easement exists (this is the same as an implied covenant).
This occurs when the evidence shows that when the sales
began, the developer had a scheme of development which
included the lots in question.
Questions: What can make covenants terminate?
1) Same person buys benefitted and burdened land.
2) Can get 100% of the parties to waive covenant and
all agree to put a gas station on the property.
3) D puts up the gas station and no one says anything.
Defenses to a later action will be:
c) Implied waiver
A subdivision with a bunch of violations; it no longer
looks residential at all.
1) If one who is in violation sues--unclean hands.
2) If one not in violation, court may say the character
of neighborhood has changed.
Actual (really must be on land and use it as actual
owner would); open and notorious; continuous (not 24 hours a
day--can even take a couple of weeks vacation); exclusive (if
true owner also possessing can get. Can't have two competing
as plaintiff); hostile. Pneumonic device--Albert often
cleans each hand.
Exception: can be constructive with cabin on 40 acres;
adverse possessor moves in cabin for twenty years but never
goes out on other thirty-nine acres. Law will allow her all
if she can prove:
1) Whole thing in one owner
2) All in one parcel in public records
3) He has colour of title--paper showing he owns it
regardless of forgery effect
To some degree this is influenced by type of property.
Cabin for vacation if it is year round.
The "hostile" requirement is the most misunderstood. It
doesn't mean a state of mind; it means that the adverse
possessor has no permission to be on the land. It doesn't
matter whether he is in good faith or in bad faith.
Examples of permission: it here is an ouster, adverse
possession begins to run in favor of the person ousted.
The law protects certain people; for example, people
under legal disabilities:
The statute will not begin to run until disability is
overcome. However, only count disabilities if they exist the
day the adverse possessor moved on to the land.
Other parties protected:
1) Holders of future interest--because not yet in
possession cannot see the adverse property-holder.
2) Government--can never get adverse possession to
Tacking. Suppose the statute prescribes twenty years as
the date of adverse possession. One adverse possessor live
on the land for ten years and leaves, the second adverse
possessor moves on for another ten years. Does the second
adverse possessor have adverse possession? Only if privity
exists between the first A.P. and the second A.P.. If there
is a purported conveyance from one to the other, through a
deed, will, etc., then adverse possession may run.
The recording acts. Applies to deeds, mortgages, etc.
1. O to A on June 1st.
2. O to B on June 2nd.
Question--who owns the land? Answer--if no recording
act A, because O had nothing to give to B.
For the subsequent purchaser to win, A would have to
been delinquent in recording.
Three types of recording statutes (on exam we may be
given a statute):
1) Notice statute (in half of the states). For B to
win, even if A failed to record, B must give value and be
2) Race statute. For B to win B must record first and
be a bona-fide purchaser.
3) Notice-race statute. For B to win B must be a BFP
and record first and be without notice.
How to become a BFP:
1) Pay value. Not givt; must pay something substantial
in relation to property value (not necessarily equivalent).
Could be cash, not, legal right. Must be contemporaneous.
O to A; A doesn't record; O runs over B; B brings
personal injury action and gets a judgement. A say B, "You
can't have lien on the land." Sorry B, recording acts do not
protect people with judgements because they did not give
2) Be without notice.
a) If someone tells you, this is actual knowledge.
b) Everyone is deemed to have examined public
records. If unrecorded, there still may be
something in chain of title to put B on notice.
c) By looking at the land. B is deemed to ask if
someone other than O is in possession. B must make
an inquiry of the one in possession; he cannot just
ask O, because he will lie.
BFP filter. If B wins against A, B may want to sell.
He can. He can sell to anyone except anyone before him who
Contracts for the sale of real estate.
1) Statute of frauds applies (needs to be written
memorandum signed by the party to be charged). Does not have
to be a contract itself. It could be a letter written later
or a check.
If a party does not have a writing look to equity to
enforce the doctrine of part performance. "The purchaser
must do certain things to forgive a lack of writing." In
most states the purchaser must do two of three things:
a) Pay part of price
b) Go into possession
c) Make substantial improvements
In some states even the seller can enforce the contract
if B has done two of these three things.
Every contract of real estate is deemeed to have in it a
covenant to convey marketable title. The title does not have
to be perfect. A marketable title is "a title a reasonable
person would be willing to take." If a claim existed, it is
3) Time to close.
Normally contract will say when it is to occur. The law
says this time is not strictly binding if the late party can
close within a reasonable time. The contract will then be
enforced. The late party will have to compensate the other
party. The parties can change this result by putting in a
time is of the essence clause. Then the breach will be a
Equitable conversion doctrine. Risk of loss in son B as
soon as an enforceable contract is formed. If seller had
fire insurance, he must give B credit.
What is a mortgage? Mortgagor is a borrower, mortgagee
is a lender. Mortgagor must give lender a note and a
mortgage (this secures the note). Both usually have an
acceleration clause--if mortgagor fails to pay, the entire
amount of the note becomes due.
If mortgagor breaches, the bank can sue you on the note
or foreclose on the mortgage.
Equity says: if mortgage is in default and will be
foreclosed, you have the right to come in anytime up to the
moment of sale and pay off the loan. Cannot waive the equity
of redemption. By statute, some states allow you to come in
after the sale; in Missouri, only if lender bought the
Foreclosure. Bank first pays attorneys fees and court
costs, then it pays the debt. If there is a surplus, the
debtor gets it, if there is a deficiency, the lender can sue
the debtor on the deficiency. In a couple of states there
are restrictions on going after deficiencies, but on the test
assume the bank can go after a defiency judgement.
Multiple mortgages. When mortgage is foreclosed:
1) Subordinate mortgages destroyed (wiped out). The
priority usually is determined by chronology, subordination
agreements, or a failure to report. If there is a surplus,
it goes to them in order. Suppose the second mortgage is
foreclosed. This will wipe out the third, fourth, etc., but
it will not wipe out the first mortgage. If the buyer is
buying a piece of land foreclosed on a second mortgage, he
must first pay the first mortgage, so he should deduct that
amount before the bid.
When property is sold with a mortgage on it, the banks
lose money on the interest. Banks don't like this, so
they've come up with:
1) Due on sale clause. These are enforceable.
Congress passed a statute which pre-empted this. What are
the liabilities of the old owner and new owner? The new
owner assumes the mortgage. He promises to pay it. Bank
considered a third party beneficiary to the new agreement.
1) Property is primarily liable.
2) Then must go after the new owner (old owner is
liable only as a surety)
New owner takes "subject to"--he doesn't have to
promise. The new owner is not personally liable.
1) First property
2) If foreclosure did not bring enough cash, then
old owner is still personally liable.
You're on your own with fixtures, zoning, and water
rights (this stuff is pretty narrow and doesn't get hit