Property Issue Checklist

PROPERTY ISSUE CHECKLIST & TEMPLATES

INTERESTS CREATED BY VOLITION, IMPLICATION, AND PRESCRIPTION
EASEMENTS, PROFITS A PENDRE, AND LICENSES
EXPRESS CREATION
CREATION BY IMPLICATION
CREATION BY PRESCRIPTION
SCOPE AND TRANSFERABILITY
TERMINATION
REAL COVENANTS AND EQUITABLE SERVITUDES
TRADITIONAL ELEMENTS
EQUITABLE SERVITUDES
CONSTITUTIONAL AND PUBLIC POLICY LIMITATIONS ON COVENANTS AND SERVITUDES
CONSTRUCTION, ADMINISTRATION AND TERMINATION
NON-VOLITIONAL (NATURAL) INTERESTS
NUISANCE DOCTRINES
THE REAL ESTATE CONTRACT
ORAL AGREEMENTS
THE STANDARD WRITTEN CONTRACT
CONSTRUCTION AND PERFORMANCE
STATUS OF VENDOR AND PURCHASER-EQUITABLE CONVERSION
THE ROLE OF THE REAL ESTATE BROKER
THE DEED
CONVEYANCING AT COMMON LAW AND UNDER THE STATUTE OF USES
THE MODERN DEED—TYPES AND ELEMENTS
EXECUTION
SUBJECT MATTER CONVEYED

EASEMENTS

IWhether an easement was created.

RAn easement is a grant for the limited use of land for a specific purpose. It creates a benefit to the dominant estate and a burden to the servient estate. The four types of easements are affirmative, negative, appurtenant and in gross. The intent of the parties determines which type of easement is created. There are three ways to create an easement: (1) expressly, (2) by implication, and (3) by prescription.

AHere, the limited use of land is...

The specific purpose is...
The benefit to the dominant estate is...
The burden to the servient estate is...

TYPE OF EASEMENT

c—An affirmative easement is present

r—an affirmative easement entitle one to do acts upon the burdened land.

a—Here, ______is entitled to do acts upon the burdened land because...

c—therefore the easement is affirmative.

c—A negative easement is present.

r—a negative easement entitles the owner of the easement to prevent the owner of the burdened land from making certain uses of the land.

a—here, the owner of the easement prevents certain use of the land because...

c—Therefore, the easement is negative.

c—The easement is appurtenant.

r—An appurtenant easement is represented by two tracts of adjoining lands in which the benefit runs with the land after subsequent conveyances. Neither word of inheritance nor other words of art are essential to the valid reservation of an appurtenant easement of even unlimited duration.

a—Here, the nature of the property shows adjoining tracts of land because...

The benefit will run with the land after subsequent conveyances because...
There are no words of inheritance because...

c—Therefore the easement is appurtenant.

c—The easement is in gross.

r—An in gross easement is a personal right, not inheritable, to come upon the land to do something. An in gross easement always lies in a grant and is an interest in land that requires a writing and a seal.

a—Here, the right was personal because...

The right is not inheritable because...
The easement does not lie in a grant because...
The interest in the land is expressed in writing and sealed because...

c—Therefore, the easement is in gross

c—A license was created

r—a license is not an interest in land, but a mere right to use land, which is revocable at will. For equitable purposes, the court may determine that a license transforms into a license coupled with an interest. Where a license has been created, and the licensee expends money or its equivalent in labor in the execution of the license, it becomes irrevocable and the licensee will have a right of entry on the land for the purpose of maintaining his structures, or in general, his right under the license, and the license will continue for so long a time as the nature of it calls for.

a—Here, there is no interest in land because...

The license is revocable at will because...
The license is coupled with an interest because...
The licensee expended money and labor because...
The licensee should have a right of entry because...
The purpose of maintaining the structures is...
The time of termination will be...

c—Therefore, a license was created.

CREATION OF EASEMENT

c—The easement was expressly created.

r—An express easement is created in the conveyance. The court will look to the four corners of the instrument and to any surrounding circumstances to determine the intent of the parties.

a—Here, the nature of the instrument provides...

The surrounding circumstances show...
Based on the instrument, the circumstances, and the nature of the land, the parties probably intended...

c—Therefore, an express easement was created.

c—The easement was impliedly created.

r—an implied easement falls under two categories—implication by necessity and implication by prior use.

Factors to consider that an easement by necessity was created are common ownership of two tracts of land prior to the severance of title, evidence of abutting tracts of land, and facts indicating a landlocked property. The necessity is determined at the time of the original conveyance and may lie dormant until the necessity is revived by the current possessor. The easement by necessity will end if no longer necessary to the enjoyment of the land.

a—Here, there was an easement by necessity because...

There was common ownership prior to the severance of title because...

The lands are abutting because...
The nature of the property is landlocked because...
The necessity at the time of the original conveyance was...
There are no reasonable means of access, ingress, or egress because...
OR

a—Here, there was an implied easement by prior use.

r—Prior use arises when an owner of an entire tract of land or two or more adjoining parcels, after employing a part of the tract or one parcel, derives from another, a benefit or advantage of apparent, continuous, and permanent nature, conveys or transfers part of the property.

a—The owner of the entire tract of land was...

The owner employed part of the land because...
The tract benefited from the other because...
The advantage was apparent because...
The advantage was continuous because...
The advantage was permanent because...
The nature of the alternative right of way was...

c—Therefore, the easement was implied by prior use.

c—The easement was created by prescription.

r—An easement by prescription is created if use of another’s land has been continuous, uninterrupted, and adverse, for at least twenty years, under a claim of right, with knowledge and acquiescence of the owner, and not as a matter of courtesy or favor on his part.

a—Here, the use was continuous because...

It was uninterrupted because...
It was adverse to the owner because...
The use lasted twenty years because...
The owner had knowledge because...
The owner silently consented because...
The use was not as a matter of courtesy because...

c—Therefore, an easement by prescription was created.

TERMINATION OF EASEMENT

IWhether the easement was terminated.

RAn easement can be terminated by mutual agreement or by virtue of the conveying instrument, merger of two lands, unequivocalintent to abandon, release, or by alteration. Mere non-user is not sufficient to terminate an easement. An easement by necessity will end when the easement is no longer necessary to the quiet enjoyment of land. An easement implied by prescription ends when the use is interrupted by acts of the servient owner, but the same adverse use will start the period over again.

AHere,...

CTherefore, the easement was terminated.

REAL COVENANTS

IThe issue is whether a real covenant was created.

RGenerally, a real covenant is a promise with respect to land. They can be either affirmative or negative. To enforce a real covenant it must run with the land. Thus, real covenants require a writing, the covenant must touch and concern the land, the parties must have intended the real covenant to run with the land, and there must be privity of estate to recover at law.

Ac—The real covenant is affirmative

r—Affirmative real covenants require the promisee of the dominant estate to require the promisor of the servient estate to do something on the servient estate. Affirmative real covenants are more likely to be in dispute because it is harder to prove the covenant runs with the land. Generally, affirmative real covenants are disfavored because it implicates perpetuities and poses unreasonable restraints on land that bind to all future owners regardless of use.

a—Here, the promisee, owner of the dominant estate, required the promisor to do ...

c—Therefore, the real covenant is affirmative.

c—The real covenant is negative.

r—Negative real covenants are restrictions against the promisor from doing something on the servient estate. Negative real covenants are easier to prove that they run with the land because it is easier to meet the requisite elements.

a—Here, the promisee restricted the promisor from doing ______on the servient estate.

c—Therefore, the covenant is negative.

c—There is/is not a valid writing.

r—a writing is required to comply with the statute of frauds because parcels of land are unique, the writing determines the remedy for breaching the covenant (in law or equity), and it helps determine the intent of the parties.

a—Here, the nature of the writing shows...

Statute of frauds because...
Remedies because...

c—Therefore, there is/is not a valid writing.

______

c—The real covenant does/does not touch and concern the land

r—Generally, to “touch and concern” means to substantially effect the ownership interests of the burdened and benefited land. Whether a real covenant will touch and concern the use of land is one of degree that depends on the particular circumstances of the case. Factors that “touch and concern” include the impact on value, quality, and enjoyment of the interests in the land.

a—The nature of the covenant substantially effects the interest of the parties because...

Discuss circumstances...
Impacts the value because...
Impacts the quality because...
Impacts the enjoyment because...

c—Therefore, the real covenant does/does not touch and concern...

______

c—The parties intended the covenant to run with the land.

r—Whether the original covenanting parties intended the covenant to run with the land requires an examination of the original writing and the surrounding circumstances which may show the intent of the parties.

a—Here, the writing shows...

Discuss circumstances...

c—therefore, the parties intended the covenant to run with the land.

______

c—There is/is not privity of estate between the parties.

r—The modern view is that no more than vertical privity is required. Vertical privity requires that only one person presently claiming the benefit or subject to the burden is a successor to the estate of the original person so benefited or burdened.

a—Here, the party presently claiming the benefit/burden is...

The party is a successor to the estate of the original person so benefited/burdened because...

c—Therefore, there is/is not privity of estate between the parties.

CTherefore, there is/is not a valid real covenant that runs with the land.

EQUITABLE SERVITUDES

IThe issue is whether an equitable servitude was created.

RWhen a requisite element of a real covenant is missing, the courts may find an equitable servitude if the real covenant is not enforceable at law. To be enforceable, an equitable servitude still requires a writing and must comply with the statute of frauds. However, it may be enforceable provided there is notice. Notice is based on equity. A party purchasing land with notice that a covenant is attached must not violate the covenant. Notice can be actual, constructive or by inquiry. The typical remedy is an injunction against the party violating the restriction in the covenant.

Ac—There was/was not actual notice.

r—Actual notice requires knowledge of the covenant within the deed.

a—Here, the party had/did not have/ knowledge of the covenant within the deed because...

c—Therefore, there was/was not actual notice.

______

c—There was/was not constructive notice.

r—Constructive notice is when the party should have known about the covenant because it is written in the deed or recorded at the recorder of deeds. Constructive notice arises by operation of law.

a—Here, the party should have known about the covenant because...

The covenant was in the deed because...
The deed was recorded and the party could have found out about the covenant because...

c—Therefore, there was/was not constructive notice.

______

c—The party was/was not obligated to inquire.

r—The surrounding circumstances put the buyer of land with a covenant attached in a position that he should have inquired whether there was a covenant attached to the land.

a—Here, the nature of the property shows...

By walking the land, ______should have been put to inquiry because...

c—Therefore, the party was/was not obligated to inquire.

CTherefore, the servitude is enforceable and ______will probably be enjoined from violating the restriction.

Covenant not to Compete

IWhether a covenant not to compete runs with the land and is enforceable in equity.

RReasonable covenants against competition may be considered to run with the land when they serve a purpose of facilitating orderly and harmonious development for commercial use. Harmonious development encourages the maximum utility of land.

AHere, the covenant facilitates/does not facilitate orderly and harmonious development for commercial use because...

Thus, the covenant does/does not encourage the maximum utility of the land in question because...

CTherefore, the covenant not to compete does/does not run with the land.

______

Reciprocal Negative Easements

IWhether a reciprocal negative easement exists.

RWhen an owner of 2 or more lots adjacent to each other sells one with a restriction or benefit, the restriction or benefit applies to the subsequent sales by the common owner of all the adjacent lots. The reciprocal negative easement is created in writing with the sale of the first property and runs with the land until it expires. It is operative upon use by any owner having actual or constructive notice of its existence. It is not operative on any owners who purchased land before the restriction or benefit was created. These are created for mutual benefit of all adjacent landowners, it sustains overall property values, and promotes uniformity. Finally, the reasoning is that the original purchaser of the lot detrimentally relied on the restriction applying to all adjacent parcels.

AHere, there is a common owner because...

The restriction was created in writing when...
The subsequent sales occurred...
The nature of this land is such that...
The restriction applies to these properties because...
There was notice because...
It will expire on...

CTherefore, a reciprocal negative easement was/was not created.

Schemes

IWhether a scheme was created and enforceable in equity.

RGenerally, a scheme is the plan of what the grantor wants to do with his land. It is the overall purpose of what the land will be used for. The scheme signifies the overall intent of the grantor. A scheme will have legal effect if it is definitely settled by the common owner when the sale of the lots begins although there is no evidence of settlement at that time, but a series of subsequent conveyances supplies that evidence.

AHere, the grantor had a plan because...

The overall purpose is...
The common owner is...
There was/was not evidence of the scheme because...
Subsequent conveyances supplied evidence of the scheme because...

CTherefore, a scheme was/was not created and is/is not enforceable.

______

PUBLIC POLICY LIMITATIONS ON COVENANTS AND SERVITUDES

IWhether the covenant or equitable servitude violates public policy.

RCourts are cautious to void contracts on the basis that they are contrary to public policy. However, where a contract provision is manifestly against the public interest, the court will find the contract unenforceable. The court will balance private interests against public interests to determine whether the covenant will be enforced.

AHere, the covenant states...

The private interests are...
The public interests are...
Make a decision...

CTherefore, the covenant does/does not violate public policy.

______

Construing The Covenant

IWhether the covenant will be construed strictly or broadly.

RIntent of the parties is given great weight and the court will not defeat the purpose for which the covenant was established. The factors included: the surrounding circumstancesexisting at the time of the creation of the covenants, the location and character of the tract of land; the purpose of the restriction; the beneficiaries; and whether the restriction is pursuant to a general plan for the development of the property.

AThe nature of the property indicates...

The location is key because...
The character of the land is...
The purpose of the restriction is...
The beneficiaries are...
There is a general plan because...

CTherefore, if the covenant is strictly/broadly construed, it does/does not apply.

TERMINATION OF RESTRICTIVE COVENANTS AND EQUITABLE SERVITUDES

IWhether the covenant or servitude was terminated.

R Termination of covenants or servitudes requires the intent to terminate. Abandonment, waiver, merger, change in condition, express by terms, acquiescence, and expiration can terminate a covenant or servitude. Mere non-use of property alone does not constitute a termination of the covenant. Termination is determined by the circumstances of each case. Change in conditions outside a development will not constitute a termination of a covenant applicable to the development.

AHere, [pick one and discuss]

Circumstances...

CTherefore, the covenant was/was not terminated.

______

PUBLIC NUISANCES

IWhether there was a public nuisance.

RA public nuisance is a burden that affects the entire community. It is an unreasonable interferenceaffecting the rights enjoyed by citizens as a part of the general public. In addition, when a party violates a statute or law, there is a public nuisance per se.

AHere, the burden effects the entire community because...

The nuisance unreasonable interferes with the rights of the entire community because...
The party violated the statute because...

CTherefore, there was/was not a public nuisance.