License-An informal permission that allows the holder to use the land of another for a particular purpose.

It is not an interest in land and, accordingly, can be revoked at any time.

Profit-A right to enter the land of another to remove minerals, gravel, timber, game, or other natural resources. Today most courts apply the same rules for both a profit and an
easement. Restatement 1.2 defines the profit as a specialized easement.
Creating Easements: A non-possesory right to use the land of another person. A definite period and a right to exclude will generally imply an easement as opposed to a
license. (Milbrook Hunt) Appurtenant or in gross-An appurtenant easement benefits the holder in her use or a specific parcel of land, the dominant tenement. An easement in gross
is not connected to the holder's use of any particular land; rather, it is personal to the holder (personal easement). Most easements are appurtenant. I. Express-Created by contract.
Must be in writing to satisfy the Statute of Frauds. II. Implied-Elements required: (1) severance of title to land held in common ownership [by grant or reservation]; (2) an existing,
apparent, and continuous use of one parcel for the benefit of another at the time of severance; and (3)reasonably necessity for that use. (see Boyd v. Bellsouth Telephone)
Reasonable necessity-The easement must be beneficial or convenient for the use of the dominant tenement, but need not be essential. "Reasonable necessity usually means that
alternative access or utilities cannot be obtained without a substantial expenditure of money or labor." (Restatement 2.12 cmt. e) III. Easement by necessity-Two elements for an
easement by necessity: (1) Severance of title to land held in common ownership; and (2) strict necessity for the easement at the time of severance. Strict necessity: Strict necessity is
found only when the owner has no legal right of access to her land. Even if their way of access is inconvenient or expensive it will still not meet the standard of strict necessity.
(Thompson v. Whinnery) Reasonable practical necessity (majority): The owner lacks reasonably practical access to her land. (Berge) Reasonable necessity: the easement must be
beneficial or convenient for the use of the dominant parcel, but not absolutely necessary. (Minority/Restatement 2.15) Two justifications for easement by necessity: (1) the implied
intent of the parties; and (2) the public policy favoring the productive use of land.' Right of servient owner: In general the owner of the servient land is entitled to select the route
for an easement by necessity, as long as it is reasonable. (Griffeth v. Eid) IV. Prescriptive-Required elements: (1) Open and notorious; (2) adverse and hostile; (3) continuous; (4)
for the statutory period. (See, MacDonald Properties, Inc. v. Bel-Air Country Club; Restatement 2.17) Policy-Promotes the efficient use of land by allowing access to parcels that
otherwise might remain idle. Tacking-Tacking may be used if there is privity between the successive users. Knowlege-Majority of jurisdictions actual knowledge of adverse use is
not required. Public trust doctrine-Navigable waters and certain related lands belong to the government as trustee for the benefit of the public. Thus, if the government sells such
property to a private owner, his title is subject to the public's right to use the land. V. Easement by Estoppel (Irrevocable license)-Elements: (1) A landowner allows another
to use his land, thus creating a license; (2) the licensee relies in good faith on the license, usually by making physical improvements or incurring significant costs; and (3) the licensor
knows or reasonably should expect such reliance will occur. (See Holbrook v. Taylor; kienzle) Policy-Unjust to allow a landowner to revoke his permission after the user has relied
on it in good faith substantially changes his pos.
Relocating Easements: Traditional rule is that the location of an easement can be changed only if both the servient and the dominant owners agree. But Restatement 4.8
provides that the servient owner may relocate an easement as long as it does not significantly lessen the utility of the easement, increase the burdens of an easement holder, or
frustrate the purpose of the easement.
Interpreting Easements: When the grant's terms are not specifically defined, they should be given their plain, ordinary, and generally accepted meaning. The manner,
frequency, and intensity of an easement's use may change over time to accommodate technological development. But such changes must fall within the purposes for which the
easement was created, as determined by the grant's terms. (i.e. easement expressly granting dominant owner ability to construct and maintain electric lines does not necessarily
extend to cable lines)
Terminating Easements: I. Prescription-An easement may be terminated by prescription, using essentially the same standard for acquiring a prescriptive easement. Thus,
if the servient owner blocks the use of the easement in an open, notorious, adverse, hostile, and continous manner for the prescriptive period, the easement ends II.Condemnation-
Condemnation of the servient land also terminates the easement. In this event, the easement holder is entitled to just compensation. III. Estoppel-An easement ends if the servient
owner substantially changes his position in reasonable reliance on the holder's statement that the easement will not be used in the future. IV. Merger-If one person obtains title to
both the easement and the servient land, then the easement terminates under the doctrine of merger. V. Misuse-In some jurisdictions, if the holder seriously misuses the easement,
it may be ended through forfeiture. VI. Release-The easement holder may release the easement to the servient owner by executing and delivering a writing that complies with the
Statute of Frauds. VII. Bona Fide Purchaser-"A bona fide purchaser is one who purchases land without knowledge or actual or constructive notice of the existence of an
easement." VIII. Abandonment- Requires not only the ceasing of the use of the property, but either a present intent to relinquish the easement or a purpose inconsistent with its
future existence. It is not extinguished simply by non-use. Scope-The scope of an easement may be...adjusted in the face of changing time (tempora motondo) to serve the original
purpose, so long as the change is consistent with the terms of the original grant (can't convey more interest in property than you have).
Conservation easement-A type of negative easement that restricts the development and use of the sevient land in order to preserve open space, farm land, historical sites, or
wild and undeveloped land. (Servient owner usually conveys the easement to a land trust or other conservation group)
Real Covenant (monetary damages) -A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors. The
remedy for breach is money damages. Burden-The duty to perform the promise. (burdened land-the property whose owner is bound by a covenant to act (affirmative covenant) or
not (negative covenant); others are trying to enforce covenant against property owner). In order for the burden to bind the promisor's successors, six elements must be proven (if not
proven then the individual is bona fide purchaser): (1) Compliance with Statute of Frauds-The covenant must be contained in a document that satisfies the Statute of Frauds.
Common Plan Exception to Statute of Frauds-Where a developer has manifested a common plan to impose uniform restrictions on a subdivision, all lots are burdened and benefited
by the restrictions even if they do not appear in the chain of title to every lot. (e.g. 91 lots limited to residential use even though restriction only found in 53 lots-Sanborn v. McLean)
(2) Intent to bind successors-The original parties must intend to bind their successors. The needed intent is usually found in the express language of the document.. (3) Touch and
concern-The covenant must "touch and concern" land. In other words, it must relate to the enjoyment, occupation, or use of the property. (e.g. a promise not to build any structure
higher than 20 feet meets this standard because it limits how the land may be used. But a purely monetary obligation, such as a promise to purchase insurance, does not touch and
concern.) (4) Notice-The successor must have notice of the covenant. This requirement is satsfied by actual notice, record notice, or inquiry notice. (5) Horizontal privity-
Horizontal privity concerns the relationship between the original parties to the promise. In the United States, there is a split authority on this point: Mutual interests-In some states,
horizontal privity requires that the original parties have mutual interests in the affected land (e.g. landlord and tenant; cotenants; or owners of the dominant and servient lands for an
easement). Successive interests-In other states, there must be a grantor-grantee relationship between the original parties, so that they have succesive interests in the affected land.
The transfer must occur at the same time of the restriction. (e.g. transfer of fee simple absolute, life estate, etc.) No requirement-An increasing number of states have abandoned the
requirement; this is the modern trend. (6) Vertical privity-Vertical privity concerns the relationship between an original party to the promise and his successor. The test is simple:
vertical privity exists only if the successor receives the entire estate that the original party had. So if A holds a fee simple absolute and conveys it to B, vertical privity exists between
them. Benefit-The right to enforce the promise. (benefited land-the property whose owner benefits from a covenant or servitude; property owner is trying to enforce against another
landowner) Only four of elements are required for the benefit to run to successors: (1) Complaince with Statute of frauds, (2) intent to bind successors, (3) touch and concern, and
(4) vertical privity.
Traditional remedy for equitable servitude is injuction. However, courts have begun to blur the distinction with real covenants (i.e. damages may be available).
Equitable Servitude (injuction)-Four requirements for the burden to run: (1) Compliance with Statute of Frauds (see common plan exception); (2) Intent to bind
successors; (3) Touch and concern: (4) Notice-may be actual notice, constructive notice gathered from the deeds, or inquiry notice gathered from viewing the premises and
surrounding properties.(see Tulk v. Moxhay). Three requirements for the benefit to run (no notice requirement): (1) Compliance with Statute of Frauds; (2) Intent to bind
successors; and (3) Touch and concern.
Common Interest Community-A planned residential development (a) where all properties are subject to comprehensive private land use restrictions and (b) which is
regulated by a homeowners association.
Enforcing Restrictions (CC&Rs)-There are Four defenses used against enforcement (additionally, like an easement, may be terminated by condemnation, estoppel, merger,
prescription, or release): unreasonableness (Lakeside); abandonment (Fink); changed conditions (Vernon), and Constitutional violation (i.e., discrimination) (Shelley v. Kramer)
I(a). Unreasonableness-There is a presumption of validity. Courts will not enforce a restrictive covenant when the harm caused by the restriction is so disproportionate to the
benefit produced by its enforcement that the restriction ought not to be enforced. Reasonableness is determined not by reference to facts that are specific to the objecting
homeowner, but by reference to the common interest development as a whole. (Lakeside). I(b) Unreasonableness (Restatment)-A servitude is valid unless it is illegal or
unconstitutional or violates public policy. A servitude violates public policy if it: (1) is arbitrary, spiteful, or capricious; (2) unreasonably burdens a fundamental constitutional right;
(3) imposes an unreasonable restraint on alienation; (4) imposes an unreasonable restrain on trade or competition; or (5) is unconscionable. (Restatement 3.1). II. Abandonment-
Requires a showing that the average person, upon inspection of a subdivision and knowing of a certain restriction, will readily observe sufficient violations so that he or she will
logically infer that the property owners neither adhere to nor enforce the restriction. In applying this test courts consider the number, nature, and severity of the then existing
violations, any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant. (Fink) III(a).
Changed Conditions--The burden is on the challenging party to show that the original purpose of the restriction has been materially altered or destroyed by changed conditions,
and that a substantial benefit no longer extends to the CIC by enforcement of the restirction. Changed conditions outside of the restricted tract do not necessarily impair the value of
a restriction on the residents of the restricted tract. (e.g., alcohol) Policy: Land shall not be burdened with permanent or long-continued restrictions which have ceased to be of any
advantage. (Vernon) III.(b)Compensatory Damages Due to Changed Conditions (little cont. utility)"A servitude may be enforced by any appropriate remedy...which
may include compensatory damages." Monetary relief may be more appropriate when "a servitude has little continuing utility because the purpose it was designed to serve is less
important...than when the servitude was created..." Restatement 8.3(1) and cmt. e. IV. Discrimination: A covenant which violates a Constitutional right will be considered state
action if a party seeks judicial enforcement. (Shelley v. Kraemer) Leases or Sales: Courts generally enforce CC&Rs that restrict or prohibit leasing units. Restrictions on sales (e.g.
requiring approval) are upheld if reasonable.
Challenging the Boards Decision (CC&Rs): I. Business judgment rule (minority)-The association is not liable if the board made the decision in good faith and
rationally believed that it was appropriate. II. Reasonableness standard (majority)-An association must "act reasonably in the exercise of its discretionary powers."
Restatement 6.13(1)(c). (See Schafer) The association may not act in any way not authorized by the articles or the declaration. Acts beyond the scope of the powers so authorized are
ultra vires (i.e. beyond the power granted to the board). (id.) A broad view of the powers delegated to the association is justified by the important role these communities play in
maintaining property values and providing municipal-like services...If unable to act, the common property may fall into disrepair. Restatement 6.4 cmt. a.; see id.)
Nuisance-The plaintiff in a private nuisance case must establish that the defendant's conduct resulted in an intentional, nontrespassory, unreasonable, and substantial interference
with the use and enjoyment of the plaintiff's land. Intentional-The defendant's conduct is intentional if he acts for the purpose of causing the harm or he knows that the harm is
resulting or is substantially certain to result from his conduct. Nontrespassory-The interference must not involve any physical entry onto the land of another. Unreasonable-
Jurisdictions differ about the meaning of this element. Some states follow the gravity of the harm test: the defendant's conduct is unreasonable if it causes substantial harm,
regardless of the social utility of the conduct. Many states use the Restatement standard: conduct is unreasonable if the gravity of the harm out-weighs the utility of the conduct. R2d
Torts 826(a); see Thomsen. Substantial interference-There must be a "real and appreciable invasion of the plaintiff's interests." R2d 821F cmt. c. Use and enjoyment of
land-The defendant's conduct must interfere with the use and enjoyment of land. (e.g. causing physical damage to property or personal injury to occupants. Boomer alternative
to an injunction-Where a nuisance is of such a permanent and unabatable character that a single recovery can be had, including the whole damages past and future resulting
therefrom, there can be but one recovery. Permanent damages are allowed where the loss recoverable would obviously be small as compared with the cost of removal of the
nuisance. (cost of removing the coal plant high compared to the damage to properties)
Zoning (Constitutionality)-When an exclusionary ordinance is challenged under the federal due process clause, the standard of constitutional
adjudication remains: if it is fairly debatable that the ordinance is reasonably related to the public welfare, the ordinance is constitutional. In determining what is the public
welfare the inquiry consists of whether the ordinance reasonably relates to the welfare of those whom it significantly affects. The steps to identifying whether the challenged zoning
restriction relates to the general welfare consist of: (1) Forecast the probable effect and duration of the restriction; (2) Identifying the competing interests affected by the restriction;
and (3) Determine whether the ordinance, in light of its probable impact, represents a reasonable accommodation of the competing interests. (Associated Home Builders) Aesthetics-
Aesthetic impact may serve as rational basis to deny a permit. (Stoyanoff; and Berman) First Amendment: Regulations that do not foreclose an entire medium of expression, but
merely shift the time, place, or manner of its use, must leave open ample alternative channels for communication. (City of Ladue) Exclusionary zoning: Land use regulation that
has the effect of excluding minority or low-income groups from a community
Nonconforming uses (zoning)-Traditionally, a nonconforming use could be terminated only if: (a) the structure was destroyed; (b) the use was abandoned or discontinued;
(c) the use was a nuisance; or (d) the municipality acquired the property through eminent domain, paying fair market. Amortization: The time in which a property owner has to
conform or relocate when the property's use constitutes a preexisting nonconforming use under amended zoning regulations. It is based on the life of the usage as opposed to the
value of the land. It is permitted in most jurisdictions as long as a reasonable period is allowed. Reasonable period is usually determined in conjunction with the factors given in
AVR. (AVR, Inc. v. City of St. Louis Park) The government is not required to pay the owner because it is not considered a taking under the Fifth Amendment. (i.e., the owner still
owns the property after amortization has completed) Abandonment-Occurs if the landowner both (1) intends to relinquish his right to the use and (2) voluntarily ceases the use for
a set period of time, varying by jurisdiction from 30 days to 2 years. (some jurisdictions don't require intent; see Toys R Us)
Vested Rights-Occurs when a project is completed prior to the zoning changes. The landowner acquires vested rights in the current zoning--and is protected under the
nonconforming use doctrine--if she has already (1) acquired the necessary permits and (2) spent a substantial amount of money in good faith reliance. (some jurisdictions do not
require permit to be acquired for vested right if there was reliance)
Escaping Zoning Ordinances-The Standard State Zoning Enabling Act provided only three ways for an owner to escape a zoning ordinance: (1) the amendment, (2) the
variance, and (3) the special exception. Policy: limited options to change zoning-Predictability of the future of their land including price; helps to protect society from governmental
corruption. (1) Amendments: Rational basis test (majority): a rezoning decision is valid unless it is "clearly arbitrary and unreasonable, having no substantial relation to
the public health, safety, morals, or general welfare." Village of Euclid v. Ambler Realty Co; see City of Little Rock). Spot zoning-Zoning one lot in a manner entirely different from
the surrounding area. Spot zoning exists when a zoning amendment: (1) singles out a small parcel of land for different treatment; (2) primarily for the benefit of the private owner,
rather than the public; (3) in a manner inconsistent with the general plan for the community. (City of Little Rock.) Change or mistake approach (minority)-Rezoning is valid only
(a) if conditions in the zone have significantly changed or (b) a mistake was made in the original zoning ordinance. Quasi-judicial approach-Some courts see rezoning as quasi-
judicial action requiring more rigorous scrutiny than a variance. (i.e., reviewed de novo) (2) Variances: (a) Area variance-permits a modification of lot size, setback, height,
frontage, density, or similar requirements. (e.g. Detwiler setback requirement)-practical difficulties test-requires that the land cannot practically be used given the existing zoning,
even if a permitted use is theoretically possible. (b) Use variance-authorizes a type of use that is otherwise prohibited by the zoning ordinance.---Strict hardship (some states
require for use variance)-requires a showing of strict hardship. Hardship-Exists only if no reasonable use of the land is permitted under the existing zoning. In evaluating hardship
the use of adjacent and surrounding land is relevant. (e.g. not reasonable to require land to be used for agriculture when the are is residential) Self-infliciton-A landowner's
knowledge of zoning requirements prior to the purchase of the property is not sufficient, in and of itself, to bar the grant of a variance. Hardship is self-inflicted only where a
landowner has paid a high price for the property because he assumed that a variance which he anticipated would justify that price. (3) Special Exceptions: A use that is
permitted in the zone if certain conditions specified in the zoning ordinance are met. Some zoning ordinances require that the applicant meet specific, detailed criteria to qualify for
the permit. Some zoning ordinances broadly authorize a special exception if the zoning authorities find it consistent with the general public welfare. Quasi-judicial action-Special
exception is seen as a quasi-judicial action so it is subject to more intensive judicial review than a zoning amendment.
Eminent Domain-The inherent power of a governmental entity to take privately owned property, esp. land, and convert it to public use, subject to reasonable compensation for
the taking. (Black's Law) The Constitution, through the Fifth and Fourteenth Amendments, places two restrictions one eminent domain: (1) the government may take property only
for a "public use;" and (2) the private owner must receive just compensation. When the exercise of the eminent domain power is rationally related to a conceivable public purpose,
the act of the state will be valid. (Hawaii Housing) As long as the legislature rationally could have believed that the Act would promote its objective regardless of whether in fact it
accomplishes its objectives. (id.) Public Use- Broad Construction-‘Coterminous (coextensive in scope and duration) with the scope of the sovereign's police powers.(Hawaii
Housing) Public use’ is construed broadly and gives deference to the decisions of the city. (Kelo)Narrow Construction-Literally means physical use by members of the public.
(Schultz) Private Use-Property cannot be taken specifically to confer a benefit on a private property. Nor could the city take it without a public purpose. Broad construction-
However, the fact that a private benefit is conferred does not negate the public use of the taking. (e.g, economic development) (Kelo) Kennedy (Kelo)-A taking might not meet the
public use test if the purpose was "to confer benefits on particular, favored private entities....with only incidental or pretextual public benefits." Economic development-
Economic development constitutes public benefit and use because economics is important to the welfare of the state. (Kelo & Hawaii Housing)
Environmental: Public trust doctrine (water): navigable waters and related lands are deemed to be owned in trust by the sovereign for the benefit of the
public. The state has an affirmative duty to take into account the public trust in the planning and allocation of water resources, and to protect the public trust for
future use whenever feasible. (National Audubon) CERCLA (land surface):CERCLA imposes a strict liability scheme that imposes liability regardless of the
owner's culpability. CERCLA extends liability to owners of waste facilities regardless of their degree of participation in the subsequent disposal of hazardous
waste. Innocent buyer defense: (1) acquires the land after disposal of any hazardous substance, (2) have no reason to know that any hazardous substance was
disposed of at the property, and (3) fully cooperate with government officials. 42 USC 9601. Endangered Spec. Act: Deference to administrative agency. (take)