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notice recording law:
the first to give constructive notice of ownership wins. As long as the purchaser has no notice of the prior interest, they will prevail, even if the other interest was recorded first.

race recording law:
the first to record the title traced from the true title holder has the best title.

race/notice recording law:
the race supercedes the notice requirements. First to record wins. a deed recorded out of the chain of title is not legitimately recorded.

recording CL policy
who between two claimants have avoided the problem in the first place.
falsified deed:
voids any further conveyance that depends upon that deed. The subsequent buyers have no right right to title.
adverse possession v recording statute
Adverse possession trumps race/notice recording statutes. B/c recording statutes only protect against common conveyor.
bona fide purchaser:
innocent purchaser who buys in good faith and has no knowledge or ability to gain the knowledge of a prior title holder. They must have taken reasonable steps to look into the condition and title to the property.

generic term  describing the creation of an interest in land that is bending and benefiting not only the parties to the agreement, but also their successors. Involves some limitations or constraints on the way a person can use his property.

agreement based in contract which limits ability of each owner to use their property freely for benefit of all in the agregate. Voluntary arrangement.

covenant that runs with the land:
a covenant imposed by one owner which subsequent owners must comply. Requirements: intent, legally enforceable, touch and concern the land, privity of estate.

equitable servitudes:
baseline background understanding about use of land which you and your neighbors are subject.
zoning ordinance:
compulsory understanding/limit on how you may use your land.
interest in land of another that is non possessory and non exclusive.  A voluntary but binding arrangement. Allows one person to use another person’s property. The property owner is limited in how they can use the property subject to easement. So that ‘easemented’ property has reduced value. Thus it falls under the statute of frauds.  If it doesn’t comply, then it’s a license. a dynamic ongoing relationship between owner of easement and the owner of estate that’s burdened by the easement. The deed must describe that relationship, who’s entitled to do what and when.  non exclusive b/c it doesn’t exclude the true owner from the property subject to the easement. And the true owner can grant the easement to multiple people at once. THe original holder of easement has no exclusive right to easement. Only grantor must sign.

a revocable easement. Revocable b/c it’s not compliance w/ statute of fraud.

easement appertinant:
gives right to whomever owns a certain parcel of land the benefit of the easement on another parcel.
easement in gross:
gives right to an individual to the benefit of the easement on another parcel w/o regard to property ownership. harder to figure out the scope of this easement.

may not reserve an easement in a third party in most jurisdictions. A can’t create a deed for B with an easement reserved for C. (need separate deed).

provision in a deed creating some new servitude which did not exist before as an independent interest. ie preserve some interest (such as reserving an easement across the portion of land sold for your own transport to the main road.)  the exact location isn’t critical, it’s the purpose. So no statute of frauds problem.


a provision in a deed that excludes from the grant some preexisting servitude on the land. (ie: convey land with the exception of the land on which the road lies). can create statute of frauds problems if the exact location isn’t well described in the deed.

revocable oral or written permission given by occupant allowing licensee to do some act that otherwise would be trespass. When an easement doesn’t satisfy statute of frauds, you have a license.

rules of construction:
construe ambiguous deeds in light most favorable to the person who did not author the deed  or against grantor. depends on state law.
easement by necessity:
exception to statute of frauds in which an easement can be created orally when the neighbor has historical use of the road and no other outlet. Basically an irrevocable license.

irrevocable license:
created by estoppel. It would be unfair to dominant estate to revoke the license
easement by estoppel:
unconscionable injury resulting from denying enforcement of the oral agreement after one party has been able to do something in reasonable reliance on the agreement. (ie building the house). What started out as an act of accommodation is taken advantage of by the other neighbor and made permanent.

easement by prescription:
basically adverse possession of an easement. very open, very notoriously, continuously asserted a right to this use of another’s land. No exclusivity req’d b/c easements are non exclusive rights in land.  But must be open and notorious enough that real owner could have reasonably discerned the use and attempted to stop or give permission for it (reassert exclusive right).

easement by implication:
a necessary use of another’s property that is apparent to the servient estate. This is created when the original serv and dom owners intended there to be an easement but never recorded one under stt of frauds. Has to be obvious/common sense that an easement would be necessary. But the standard is not strict necessity. Policy: strongly against isolated parcels, so this system allows land to be used.

lost grant theory of prescription:
historically proscriptive easements have diff origin than adverse possession. It’s older (Roman law) and based on idea of the existence of an ancient grant, the exact terms of which have been lost to memory.

quasi easement:
when one utilizes part of his and for the benefit of another part. It’s like an easement in your own land. This becomes a reservation when part of the land is conveyed and the quasi easement is retained.

easement appurtenant
is one that benefits the dominant estate and "runs with the land," an easement appurtenant generally transfers automatically when the dominant estate is transferred.

easement in gross
benefits an individual or a legal entity, rather than a dominant estate. The easement can be for a personal use or a commercial use. Commercial easements are freely transferable if the burden on servient estate is the same. policy: easement in gross for non commercial purposes is a relationship with an individual who comes on your property. With a commercial entity it’s anybody related to the commercial entity coming on your property so one owner is like another.

negative easement:
the right of the dominant owner to stop the servient owner from doing something on the servient land. You cannot get a negative easement by prescription.

conservation easements:
a species of negative easement or covenant that preserves scenic or historic areas from certain development activities.

uniform enviro covenants act:
limits use of property to facilitate redevelopment. It’s a brownfield site turned to some other use (parking lot, factory, park, etc). Property is restricted in such a way that it is put to limited and safe uses. conditions must be committed to public memory to prevent abuse by future landowners.

equitable servitudes:
a promise that runs with the estate or person. Recognized and enforceable in equity courts and provide equitable remedies and subject to equitable defenses.

real covenant:
a promise respecting the use of land that runs w/ the land. Enforcable by law and has legal remedies.
horizontal privity:
privity between promisor and promisee. The relationship must be tenurial (ongoing, such as landlord tenant or life estate holder and remainder). In most states a grantor, grantee relationship will satisfy this.

vertical privity:
privity between the conveyor conveyee and his successor. if the vert privity is fee simple absolute the promisee or successor may enforce the original horizonal promise against the promisor’s successor. If it’s not fee simple absolute, the promisee or successor cannot enforce against promisor’s successor. Successor to promisee need not have fee simple absolute to enforce against the promisor or promisor’s successor.

spencer’s case test:
the promisee can enforce against the successor to the promisor when: 1) intent to run (there’s evidence of an understanding between promisor and promisee that the burden would run to successors in interest). 2) horizontal privity (only in some states).  3) promise touched and concerned the land (related to the use and enjoyment of the land).

affirmative easement:
a promise to do something on the servient estate for the benefit of dominant estate. Will not be upheld under common law.

Covenant at law:
requires horizontal privity. Can collect damages, but not special damages.
easement enforced at equity:
requires a negative promise (no affirmative promises) . Can collect special damages (injunction, etc).
touch and concern:
requirement of a covenant or easement. it’s not really defined. Wing it. Talk about impact on land (naponsit) vs. personal effects.
spot zoning:
arbitrary and capricious zoning change made only to benefit a private party. Generally it involves a major zoning change in just one small area.
govt seizing and compensating for property or restricting use in such a way that it’s useless to the owner. If it’s eminent domain for the public good or a taking meant to prevent a nuisance its fine. If it’s a public nuisance, no compensation is needed. It’s a bit harder to make this argument with private nuisance.

two policies under which it’s OK: prevent nuisance and providing for the public interest in safe, healthy, pleasant, beautiful, productive, valuable neighborhoods. Courts defer strongly to legislative intent unless it’s arbitrary and capricious. Was the govt objective to be implemented by a reasonable stragegy (RB test, basically).

just compensation:
it’s market value at its current use. No intrinsic value taken into consideration.

physical taking is always compensible. And restrictions that reduce value to zero is compensible. BUT restrictions that only limit the economic exploitation available on the site are not.  Need not compensate for every restriction.

takings compensation test:
1) character of the action (physical taking v theoretical restriction); 2) the nature of interference with the parcel as a whole, factors: extent of reduction in economic value, impact on investment backed use, whether current use can be carried on, whether property owner could make fair return on the property, whether there is reciprocity of advantage.

affirmative easement
an easement in which the servient estate promises to do something. not enforceable.
particular estate
an estate other than the four fee simple estates
Fee Simple Estates
1.  absolute

2.  conditional

3.  determinable

4.  subject to a condition subsequent      
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