Property II I. Servitudes a. Servitudes give a third party an interest in land in possession of another person for a stated purpose b.

Easements i. Express Easements 1. Affirmative vs. Negative Easements a. Affirmative Easements: Gives owner a right to do something i. Right to cross land ii. Right to run pipes underground iii. Right to run wires overhead iv. Etc. b. Negative Easements: Gives owner the right to prevent the servient owner from doing something i. Conservative Easements 2. Easements in Gross vs. Easements Appurtenant a. Easement in Gross: Personal to an individual or entity i. Commercial Easements in Gross 1. Assignable 2. Divisible a. But must be held in one stock ii. Non-Commercial Easements in Gross 1. Trend: Assignable so long as the parties intended it to be b. Easement Appurtenant: Connected to a parcel and goes to whomever owns that parcel i. Runs with the land ii. Pass to whomever becomes owner of the dominant parcel c. Can a conveyance from A to B reserve an interest for C? i. Common Law: NO! ii. Minority Rule: YES! 1. Old rule frustrates the intent of the parties ii. Implied Easements 1. Easement by Prescription a. Arises by operation of law when certain circumstances occur b. Elements i. Owner of dominant estate has used the easement 1. Openly 2. Peaceably (Redundant to acquiescence) 3. Continuously 4. Under a claim or right (Hostile) a. Think its yours b. Know its not yours c. Dont care whose it is 5. With knowledge or acquiescence of owner of the soil (Owner of the servient estate) 6. For the statutory period ii. Similar to Adverse Possession minus exclusive iii. If you are using with permission

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Easement by Estoppel [[Irrevocable License]] a. Created by operation of law when certain conditions occur b. Elements i. A license granted to party claiming easement ii. Substantial expenditure by claimant in reasonable reliance on license not being revoked 1. Eg: Owner of servient estate knows or has reason to know that improvements are being or will be made c. Easements by estoppel continue for so long as the nature of the license calls for i. New access arises ii. As long as it takes to recoup the investment Easement Implied from Prior Existing Use a. When a parcel (or two owner by the same owner) is split and one sold, but one parcel depends on the other, an easement may be implied from prior use by single owner b. Grant vs. Reservation of Easement i. Implied Grant: A sells quasi dominant tenement 1. Benefits Buyer ii. Implied Reservation: A sells quasi servient tenement to B 1. Benefits Seller iii. Implied easement must be: 1. Apparent a. Does not need to be visible to be apparent 2. Continuous 3. Necessary a. Grant is strict necessity b. Reservation is stricter necessity c. Elements i. Prior to severance, common ownership of servient and dominant estates ii. At the time of severance, there was a quasi easement iii. Before separation, use must have been continuous and obvious to a degree that shows permanency 1. Continuous intent to continue 2. Obvious Detectable a. Constructive Notice: You should know, so the court says you do b. Inquiry Notice: Reasonable person would inquire further. Charged with what he would find out from inquiry iv. Easement is necessary 1. Requisite degree of necessity varies d. Requires proof of past use! Easement by Necessity a. Grantor conveys an inner portion of land that has no access to a public highway except over the remaining lands of either the grantor or the grantor plus strangers i. Also works in reverse if he sells off surrounding land and is now landlocked

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Elements i. Prior to severance, common ownership of servient and dominant estates ii. Severance results in a landlocked parcel iii. Servient has access to public highway iv. Easement is necessary v. Granted only over land owned by a party to the transaction which left the parcel landlocked c. What is necessity? i. Some Courts: Strict Necessity 1. High degree of necessity needs to be shown if this is the sole basis for inferring the parties intent a. Difficulty in inconvenience does not meet this standard! (Maybe an easement was implied though?) ii. Other Courts: Lesser Degree 1. Easement is necessary if existing access is inadequate, difficult, or costly iii. Some Courts: No easement by necessity at all if claimed by the grantor (implied reservation) iii. Scope of Easements 1. 2 Scope Issues: a. Intensity and type of use by the dominant estate i. Misuse: Using the easement in a way not permitted by the easement 1. Brown Balancing a. Balance facts of the case to determine whether the misuse is adding burden to the servient estate b. How large the dominant estate is now or may become in the future 2. Hard-Ass Rule: Granting of an injunction will block all use of the easement until it can be proven that extension of the scope of the easement is necessary Real Covenants i. A promise or agreement, generally to do or refrain from doing something on land) that benefits or burdens not only the original promisor and promisee, but also benefits or burdens their successors in interest ii. For real damages, we need a real covenant iii. Elements 1. An enforceable contract in writing 2. Intent on the part of the original covenantor and covenantee for the covenant to run with the land 3. Substance of the covenant must touch and concern the land a. 2 Tests i. Prof. Bigelows Test 1. Does the burden or benefit effect the value of the land? a. Covenantors interest is made less valuable; OR b. Covenantees interest is made more valuable

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ii. Caulette Test 1. . . . promise must exercise direct influence on the occupation, use, and enjoyment of the premises 2. Must be a promise respecting the use of the land 4. Horizontal Privity a. Agreement was created in connection with transfer of land i. If two neighbors one day simply make an agreement, there is no horizontal privity because the agreement was not made in connection with a transfer of land 5. Some degree of vertical privity a. Relevant party acquired some portion of original estate in the agreement b. Analysis: i. Strict for burden to run 1. Relevant party has succeeded to at least the same durational estate as was held by an original party ii. Relaxed for benefit to run 1. Relevant party has succeeded to some estate in the land (equal or lesser) 6. Notice at the time a person acquires the burdened property of the existence of the covenant required only if the acquirer gave value a. Not required for the benefit to run d. Equitable Servitudes i. Also binding on successors of original covenantors, but is generally only enforceable in equity (injunctions) rather than through an award of damages ii. Elements 1. An enforceable contract in writing a. May be created by implication under limited circumstances! i. Common plan or schemes 1. Neighborhoods 2. Intent on the part of the original covenantor and covenantee for the covenant to run with the land 3. Substance of the covenant must touch and concern the land 4. No privity required! 5. Notice at the time a person acquires the burdened property of the existence of the covenant required only if the acquirer gave value II. Termination a. Termination of Easements i. Abandonment 1. Non-Use + Other Act ii. Merger 1. Servient tenement and dominant tenement come into same hands. 2. Easement is extinguished and does not revive even if parcel is divided again iii. Termination by Prescription 1. Servient tenant takes action inconsistent with the continued existence of the easement 2. This action continues in a manner that is: a. Continuous b. Open and notorious c. Hostile (requisite state of mind) d. For the statutory period

e. Without effective action by easement owner iv. Termination by Estoppel 1. Servient tenant takes action inconsistent with continued existence of easement in reasonable reliance on behavior by dominant tenant 2. And reinstatement of easement would cause unreasonable harm to servient tenant v. Loss of Purpose vi. Express Agreement of Parties vii. Limitation on Original Easement b. Termination of Real Covenants and Equitable Servitudes i. Benefit In Gross (personal); Burden Appurtenant (with land) 1. Reluctance to enforce burdens where there is no responding benefit to surrounding land RC/ES terminates! Benefit Appurtenant; Burden In Gross No public policy against it RC/ES continues! ii. Exception: Common Interest Communities 1. Benefit to the Association (incoming dues) is in gross 2. Benefit is not tied to the land: Ownership is not needed for benefit 3. Burden to homeowners (fees) will still run because Association is acting as an agent for the owners of land in the Association iii. Changed Circumstances 1. A residential use only covenant may be unenforceable due to changed circumstances when there is: a. No substantial benefit to the covenant (or it is not of substantial value) AND b. Original purpose can no longer be accomplished iv. State Action Doctrine 1. The Constitution only restricts state actors v. Abandonment vi. Merger vii. Termination by Prescription viii. Termination by Estoppel III. Zoning a. Background i. Police Power 1. The sovereigns historic power to regulate in order to promoted health, safety, morals, or general welfare a. Sometimes trumps individual economic rights in some cases b. Must be a very clear connection between the law ans police power goals ii. Purpose of Zoning 1. Create and oasis to promote raising children and their safety 2. Keep traffic from commercial areas away from where our children play iii. Constitutionality of Zoning 1. Cannot say that it is arbitrary, unreasonable, or not substantially relating to public health, safety, morals, or general welfare b. Nonconforming Uses i. A use that legally existed before a zoning provision, but which does not comply with the provision 1. Amortization requires that use to end after a specific period of time a. Majority: Constitutional exercise of police power as long as its reasonable i. Test: Do the benefits of the community more than offset the losses to the affected landowners

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Minority: Once a nonconforming use has been established then the right cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain

Flexibility i. Variances 1. To qualify for variances, must show a. Exceptional and undue hardship i. No effective use of the property can be made if the variance is denied ii. Conditional Variance: Variance granted which will entice neighbors to sell strips of land so the lot in question will conform (its going to be built anyhow, but if you help, it will conform and be nicer) b. Variance can be granted i. Without substantial detriment to the public good and ii. Will not substantially impair the intent and purpose of the zoning rules 2. Very infrequently granted ii. Special Exception 1. Ordinance anticipates exception and gives standards a. Permit or exception must be granted if requirements are met d. Exclusionary Zoning i. Areas are zoned so that certain groups, classes, and types of people are excluded 1. Municipality gets zoning power from the police power, so zoning must promote public health, safety, morals, and general welfare a. If it does not, it is not within the governments power b. General welfare is welfare of state as a whole, not just that area! IV. Takings Clause [5th and 14th Amendments] a. Government can take land for a public use, but must provide just compensation i. Rational Basis Test! ii. Heightened Scrutiny 1. Nollan a. Regulation must be reasonably related to invasion to avoid paying compensation 2. Dolan a. Court rejects reasonably related language for roughly proportional 3. Nolan & Dolan make it pretty impossible for City to trade building permits for easements a. Compensation must be money, not value of allowing permit b. Public Use i. Narrow: Literal use by the public 1. Highways, parks, government buildings, etc. 2. Michigan Test a. Public necessity of the extreme sort, otherwise impracticable i. Public benefit cannot be achieved without eminent domain b. Private entity remains accountable c. Condemnation is itself based on a public concern i. Land is a nuisance, harmful to public ii. Broad: Any public benefit or advantage 1. Not literally open to the public 2. This is the majority test!

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Physical Occupation i. Categorical Rule 1. Physical occupation is a bright-line rule, so it doesnt matter how big or small (cable wire running through 12 feet of property), it is still a physical occupation, which makes it a taking d. Regulatory Takings i. General Rule: While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking ii. Regulation must drive the economic value to zero to constitute a taking 1. Keystone a. Regulation for pillars in mines is not a taking because it is not driving the economic value to zero b. Mahon was the same rule, but under old law was considered a taking i. No longer good law 2. Private/Public nuisance laws are not takings even if the economic value is driven to zero! a. Forfeiture laws tend to be nuisance laws iii. 2 part test (no longer good law) 1. Legitimate end 2. Substantially related means a. Now rejected by Lingle b. Penn Central said it was not a taking, but arrived there by the old law so do not use this case! e. Compensation and Value of Property i. Time 1. Temporarily drives the economic value to zero not a taking because it has future value ii. Space 1. If only part of the propertys value is driven to zero not a taking because the rest of the property has value