Interests in Land

Bar Note
 Bar Notes

I. LAND USE

A. Easements
1. An easement is a limited right in:
the use of land of another

2. Nature of Easements
a. Easements may be either affirmative or negative; they may also be either appurtenant or in gross.
(1) Most easements are affirmative in nature. An affirmative easement gives the holder:
right to do something

EXAMPLE:
Alpha has the right to walk across Beta’s land.
(2) A negative easement gives the holder:
the right to make the true owner refrain from something

EXAMPLE:
Alpha may prevent Beta from building a fence that blocks light to Alpha’s land.
(a) Negative easements must:
must be written
(3) An easement appurtenant requires:
adjoining land owners

(4) An easement in gross is personal in nature.

EXAMPLE:
A utility company has the right to lay its utility cable across A’s land. The cable assists the
company in providing its utility services to its customers. A’s land is the servient estate
because it is burdened by the utility company’s right to lay its cable across A’s land. However,
there is no dominant estate: The benefit of the easement is personal to the utility company
because the easement does not benefit the company in the use of its land. Therefore, the
utility company has an easement in gross.
(a) These easements generally do not run with the land, meaning:
no successor in interest is granted that same right unless that is made clear in the agreement of sale


3. Creation of Easements
a. An easement may be created expressly through a writing, by implication, by prescription, or by
estoppel.
(1) An express easement is one created:
in writing
(2) An affirmative easement may be created by implication either by prior use or by necessity.

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(a) An easement implied by necessity requires:

1) severance of title to land held in common ownership; and
2) strict necessity for the easement at the time of severance.
(b) An easement implied by prior use requires:
1) severance of title to land held in common ownership;
2) an existing, apparent, and continuous use when severance occurs (quasi-
easement); and
3) the parties intended use to continue after division of land since use is reasonable
necessity for the enjoyment of the dominant part at the time of severance.
a) The use must have been obvious before the severance of the land.
(3) An affirmative easement may be created by prescription, which requires proof of the use of
property that is:
(a) continuous
(b) hostile
(c) open

(d) actual

1) The only element of adverse possession not typically required for an easement by
prescription is exclusivity, meaning that:
an easement can be gained by prescription even when the easement holder is
using the property in tandem w/the true owner



(4) Creation of an easement by estoppel requires proof of an act or representation by the
owner of the burdened estate in respect to the easement, justifiable reliance on that act or
representation by the owner of the benefited estate, and damages suffered by the owner of
the benefited estate if the easement is not recognized.
b. An easement appurtenant has two parties.
(1) The party getting the benefit of the easement is called:
dominant tract owner

(2) The party whose land is being burdened by the easement is called:
servient party

c. Regardless of how the easement was created, the easement:

runs with the land (meaning all successors in interest are bound by easement until easement is terminated)

4. Termination of Easements
a. An easement may be terminated by any of the following methods:
(1) based on what the easement says (if its an express easement)

(a) When the time period ends, the easement is terminated.
(2) it may be released by the dominant tract holder


(3) an easement is terminated when the dominant and servient estates come into common
ownership; (merger)

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EXAMPLE:
A purchases B’s land.
Abamdonment
(4)
(a) Mere nonuse of the easement is:
insufficient to rise to the level of abandonment

(b) Abandonment requires proof of:
1) intent to abandon; and
2) an affirmative act in furtherance of the intent. (ex - you take off a piece of RR track)
(5) Estoppel
(a) Estoppel requires proof of:
1) an act or representation in respect to the easement;
2) justifiable reliance on that act or representation; and
3) damages.
(6) an easement may be terminated by prescription (use adverse to the easement for the
statutory period); or
(7) an easement will be terminated when a governmental body acquires the servient estate
through an exercise of the eminent domain power.
B. Profits
1. A profit à prendre is a nonpossessory interest in land.
2. The holder of profit has the right to enter the land of another for purposes of:
removing natural resources

EXAMPLE:
A has the right to take gravel from B’s land.

EXAMPLE:
Examples of resources include, but are not limited to, soil, timber, minerals.
a. Profits, unlike easements, permit right to remove something from land.
3. Profits can only be created expressly or by prescription.
4. With the exception of creation, all rules governing alienation and termination of easements are
applicable to profits.
C. License
1. A license is a privilege, usually to do something on someone else’s property.
2. Because a license is personal, it is not:
it does not run with the land

3. A license expires on the death of the licensor or the conveyance of the servient estate.
4. A license is generally:
fully revocable at any time by the licensor

D. Covenants that Run with the Land

1. The parties to a covenant are:
covenantor (Promisor) convenantee (promisee)

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2. A covenant that runs with the land is a promise that attaches to land. In that covenant, the covenantor:
will promise to do something or refrain from doing something involving the land

a. Real covenants are said to run with the land, meaning that:
they bind successors in interest

3. For a covenant to run with the land, the following elements must be satisfied:
a. must be in writing (statute of frauds)
(1) A covenant that runs with the land is a promise that attaches to land. Therefore, a covenant
that runs at law must be embodied in a writing that satisfies the Statute of Frauds.
b. intent from original conventing parties that the promise actually run
(1) The writing must include language that shows the parties’ intent for the covenant to run.
(2) Typically, the covenant will state that the covenantor promises on behalf of himself and his
heirs, successors, and assigns to do or to refrain from doing something on his land for the
benefit of the covenantee and her heirs, successors, and assigns.
c. privity between the parties
(1) Horizontal privity is the relationship that exists between the original covenantor and
covenantee.
(2) Vertical privity is the relationship that exists between an original party to a running covenant
and the successor in interest to the original party.
(a) The only time vertical privity may not be found is where the acquiring party:
doesn’t succeed to the entire interest of the original conventing party at which pt that party will not
be held to the burden involved
d. touch and concern the land
(1) To touch and concern, a covenant must exercise direct influence on the occupation, use,
or enjoyment of the premises. The benefit touches if it increases the value of the benefited
property. The burden touches if it decreases the value of the burdened property.

EXAMPLE:
A promises his neighbor, B, that he will not build or obstruct the driveway running between
the two pieces of property. This will run with the land.

EXAMPLE:
A promises his neighbor, B, that he will watch B’s children after they get off of the school bus,
until B gets home from work. This will not run with the land.
e. notice (express or constructive through recording)
(1) Originally, notice was not a requirement for a covenant to run with the land at law. However,
the introduction of recording statutes into American law caused a notice requirement to
be grafted onto the requirements for a running covenant. The parameters of notice are
determined according to the terms of the relevant recording statute. Notice under recording
acts is necessary for the burden to run.
4. Equitable Servitude
a. If a covenant is violated, the aggrieved party will:
sue for money damages

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(1) If this is an insufficient remedy:

they might choose to add an equitable remedy of an injunction

EXAMPLE:
All of the landowners in Up and Coming Young Professional Acres have deeds which state,
“Each party in the development is limited to one (1) single pet per household, which must
be of the domestic dog or cat variety.” Everybody is bound. Along comes a buyer, who
buys a home in the development. Buyer has three pet goats tethered in his backyard, who
consistently slip the fence, escape, and eat every piece of vegetation they can find. The other
landowners may sue for breach of the real covenant, seeking money damages, but this would
not stop it from occurring in the future. They would also seek an injunction.
(2) An implied reciprocal servitude (or implied reciprocal negative easement) means that
a party does not necessarily have to own adjoining land in order to enforce a covenant or
easement against someone else, provided that:
they are all part of a common scheme that relates back to one originl owner that has subdivided
the land

b. A court may enforce a covenant as an equitable servitude if:
(1) the plaintiff can establish at law all of the elements for a covenant that runs with the land, but
the plaintiff seeks equitable relief; or
(2) the plaintiff cannot establish at law all of the elements for a covenant that runs with the land,
but the plaintiff can demonstrate the relaxed requirements for an equitable servitude. These
elements relate closely to the elements required for a covenant to run at law.
E. Zoning
1. The state possesses the power to regulate for the health, safety, and welfare of its citizens. Through
an enabling act, the state may delegate to a municipality the authority to protect the welfare of its
citizens by enacting a zoning ordinance.
2. A zoning ordinance may be challenged under the Due Process and Equal Protection Clauses. A
zoning ordinance may also be subject to a First Amendment challenge if it regulates billboards or
aesthetics.
F. Eminent Domain
1. Under the Takings Clause of the Fifth Amendment (which is made applicable to the states through the
Fourteenth Amendment), private property may not be taken for a public use without just compensation.
G. Nuisance
1. A public nuisance is:
an unreasonable interference w/a public right

a. An action may interfere unreasonably with a public right if it interferes significantly with:
health, safety or convenience
b. For a private citizen to get damages out of a public nuisance, the plaintiff must show:
that the P suffered harm over and above what everyone else suffered

c. A nuisance per se exists where:
a nuisance violates an ordinance or statute

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2. A private nuisance is:

an intentional or negligent interference w/the use and enjoyment of the land of another


a. To determine the existence of a private nuisance, a court balances the utility of the conduct
against the gravity of the harm caused by the conduct.
b. Coming to the nuisance is a factor that may be considered in weighing the utility of the conduct
against the gravity of the harm. However, “coming to the nuisance” is not a complete bar to suit.
H. Support Rights
1. An owner of real property has the exclusive right to use and possess the surface, airspace, and soil of
the property.
2. Lateral Support
a. If the neighboring land has been built upon, the applicable standard will be:
negligence
b. An owner of land has no liability if subsiding of neighboring land is caused by natural conditions
on the owner’s land. However, a landowner may be strictly liable if his excavation causes adjacent
land to subside (sink). If the adjacent land is improved, strict liability applies only if the adjacent
land would have collapsed in its natural state. Even if the adjacent land would not have collapsed
in its natural state, the landowner is liable for damages done negligently. The courts are split on
whether money damages may be recovered for injury to the improvements.
I. Water Rights
1. Title to lands under a non-navigable lake, river, or stream is in the abutting owner, and extends to the
center of the body of water.
2. Riparian rights are rights in water enjoyed by an owner of land that abuts a navigable natural river,
stream, or lake.
a. Under the reasonable use doctrine, a riparian owner may make reasonable use of riparian water
so long as:
it doesn’t interfere w/ rights of others who have claim to that water


b. The prior appropriation doctrine awards the right to use water to:
is first come first serve

J. Crops/Emblements
1. The common law distinguishes between naturally growing crops, which are called fructus naturales,
and crops produced by human labor, which are called fructus industriales.
a. Fructus naturales are plants, such as trees, grasses, and perennial shrubs, that grow naturally
on the land. Growing fructus naturales are considered to be part of the land. Thus, growing fructus
naturales pass with a conveyance of the land and are subject to a mortgage on the land, unless
they are specifically excluded.
(1) Where these cross a boundary line, both owners will be considered tenants in common.
b. Fructus industriales, or emblements, are annual growing crops that result from human cultivation
and labor. Under the common law, fructus industriales are considered to be part of the land and
will pass with a conveyance under the land, unless the grantor expressly reserves the crop in the
deed of conveyance.

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Multiple Choice Questions
kickstart

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 Interests in Land Answer Grid

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D

6 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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Question 1
At the start of the basketball season, the team’s coach
decided not to start a player who was a long-time fan
favorite. As the team started to lose on a consistent basis,
one season ticket holder became disgusted with the coach
and began wearing a t-shirt suggesting that people stop
attending the team’s games. During the games, the fan
would walk in front of the TV camera with his t-shirt
slogan prominently displayed.
As the season progressed, many other fans joined in
heckling the coach and wearing similar t-shirts. Soon
thereafter, the fan received a notice from the team’s
management revoking his season tickets. The fan was
informed that he would not be allowed to attend any
more games, but would receive full reimbursement for all
remaining games.
If the fan brings an appropriate action against the team
challenging the revocation of his season tickets, will he
prevail?
(A) Yes, because he was entitled to express his
rights of free speech.
(B) Yes, because he had paid for the tickets for the
whole season.
(C) No, because his license to attend games was
revocable.
(D) No, because obscene speech is not
constitutionally protected.
Question 2
Alvin held a life estate in a commercial building where
he ran a music store. His sister Belva held a contingent
remainder in the building. Alvin insisted that vinyl
records will be popular again in the future so he spent all
his money stocking up on old rock and roll records. Alvin
allowed the premises to become dilapidated. The ceiling
was sagging, the basement had water damage and one
of the main structural walls showed significant cracking.
Belva visited the music store and was horrified to see the
condition of “her” building. Belva sued Alvin to prevent
future damages to the building.
Should the court rule for Belva?
(A) Yes, because Alvin committed voluntary waste.
(B) Yes, because a remainderman has standing to
sue to prevent future waste.
(C) No, because a remainderman does not have
standing to sue for damages.
(D) No, because a life tenant is not responsible for
permissive waste.

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Question 3
A farmer and his business associate owned a large farm
as joint tenants with right of survivorship. Their primary
crop was corn. Following a general decline in the market
price of corn, the associate suggested making wheat
their primary crop. The farmer agreed that such a change
would make sense under the circumstances, and he and
the associate implemented the change. However, shortly
before the first wheat crop was to be harvested, the
farmer told his associate that he preferred growing corn,
and that he would be conveying his one-half interest in
the farm to an interested buyer. The farmer’s deed of
conveyance to the buyer made no mention of the wheat
crop growing on the land.
What interest will the buyer own in the farm and/or the
wheat crop following the farmer’s conveyance of his
one-half joint tenancy interest?
(A) The buyer will own a one-half share of the farm
as a tenant in common with the associate and
the buyer will not own a one-half interest in the
wheat crop growing on the land.
(B) The buyer will own a one-half share of the farm
as a tenant in common with the associate and the
buyer will own a one-half interest in the wheat
crop growing on the land.
(C) The buyer will own a one-half share of the farm
as a joint tenant with the associate and the buyer
will own a one-half interest in the wheat crop
growing on the land.
(D) The buyer will own a one-half share of the farm
as a joint tenant with the associate and the buyer
will not own a one-half interest in the wheat
crop growing on the land.
Multiple Choice Questions
Question 4
An eighty-year-old farmer had a successful cattle farm.
The farmer had little family and wanted to ensure that
the farm would continue to be operated by someone who
appreciated the farm’s history and enjoyed working with
cattle. The farmer had only one son who was forty-five
years old and had no children yet. One of the farmer’s
employees had started working on the farm during high
school. The employee had shown a great interest in
cattle and was a loyal and hardworking employee. That
employee was in his early twenties. To ensure that the
farm would continue operating after his death, the farmer
included a clause in his will that provided that upon the
farmer’s death, the farm would go to his son for life, and
then upon the son’s death, the farm would pass to the
son’s children. The will further provided that if the son
had no children at the time of his death, then the farm
would pass to the valued employee. The farmer died two
years later, at which time his son still had no children.
The employee was still working on the farm.
Does the employee have a remainder interest in the farm?
(A) No, the employee has a fee simple interest
subject to condition subsequent.
(B) No, the employee has an executory interest.
(C) Yes, the employee has a contingent remainder
interest subject to condition precedent.
(D) Yes, the employee has a vested remainder
interest subject to open.
Question 5
A landowner conveyed his property, “To A, her heirs and
assigns, so long as it is used by the people to gather for
purposes of public assembly and debate, then to B and
his heirs.”
Which of the following best describes A’s interest in the
property?
(A) A fee simple absolute.
(B) A fee simple determinable.
(C) A fee simple subject to condition subsequent.
(D) A fee simple subject to executory interest.
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Question 6
A caterer owned a large, undeveloped area of grassland
and rolling hills. A mining company wished to extract
coal from the land without having to purchase the
property. The mining company offered to pay the caterer
for the right to mine as much coal as it wished from the
land, in exchange for payment of a specified sum plus a
royalty per ton of coal removed. The caterer agreed, and
executed a document granting the requested rights for a
period of 10 years, renewable upon renegotiation of the
royalty payment for an additional 10 years. The mining
company promptly recorded this agreement.
The document further stated that the caterer agreed not
to grant a similar right to any other party during the
pendency of the agreement, although he could continue
to use the land for his own purposes, including the
removal of coal. For the next three years, the mining
company removed coal from the land. However, a dam
was subsequently constructed at the southern end of
the valley in which the land was located, and the state
asserted its power of eminent domain to buy all the lands
in the soon-to- be-flooded valley. The caterer negotiated a
price and sold the land to the state.
If the mining company sues the caterer to compel him to
pay the mining company a portion of the price the state
paid for the land, who will prevail?
(A) The caterer, because the mining company owns
a license, which is not a property right protected
by the due process clause.
(B) The caterer, because the mining company owns
a profit a prendre, which is not a property right
protected by the due process clause.
(C) The mining company, because it owns a license,
which is a property right protected by the due
process clause.
(D) The mining company, because it owns a profit a
prendre, which is a property right protected by
the due process clause.

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 Interests in Land Answer Key

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D

6 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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