1
Q
RAP
A
In Virginia, a remainder interest in a charitable trust that is triggered by the termination of the trust’s specific charitable purpose must give way to the application of the doctrine of cy pres if more than 21 years have passed since the creation of the trust
2
Q
Cy pres
A
if a charitable trust or charitable gift becomes illegal, impracticable, impossible, or wasteful, a court may apply cy pres to modify the gift so that it is carried out as near as possible to the donor’s general charitable intent.
3
Q
Ejectment action
A
An action for ejectment generally must be brought within 15 years of the accrual of the right to bring this action, but if a person entitled to bring an action is an infant at the time the cause accrues, the period of limitations does not start to run until the disability is removed. Notwithstanding the effect of any disabilities on the running of the statute of limitations in an action to recover land, the action must be brought within 25 years from when the cause of action first accrued
1️⃣ Plaintiff has legal title to the property
2️⃣ Plaintiff has the right to immediate possession
3️⃣ Defendant is in wrongful possession
4
Q
Adverse possession
A
For personal property to be adversely possessed, the possession must be (i) actual, (ii) open and notorious, (iii) hostile and adverse (without consent), and (iv) exclusive and continuous throughout the entire statutory period
5
Q
Detinue action
A
the maximum statute of limitations period for bringing a detinue action is five years
6
Q
what is a detinue action?
A
A detinue action is a Virginia statutory action used to recover specific personal property that is wrongfully detained by another.
Detinue is an action to recover:
Specific personal property, or
The value of the property if it cannot be returned,
plus damages for its detention.
7
Q
Unlawful detainer service of process
A
In the general district court, in an unlawful detainer action, the initial suit papers must be served at least 10 days before the return date, which is the first date that the case is on the court’s docket.
8
Q
Unlawful detainer
A
landlord tenant dispute.
Landlord must show:
Right to immediate possession
Defendant’s continued possession
Possession is without legal right
9
Q
Unlawful detainer
A
regaining possession of real property
10
Q
Ejectment
A
Title and possession of real property
11
Q
Detinue
A
recover possession of tangible personal property
12
Q
Tresspass
A
Damages for invasion of real property
13
Q
Attaching judgment lien
A
The holder of an attachment lien must file a memorandum of attachment or a lis pendens with the clerk’s office of the court where the property is located for the lien of attachment to be effective against a bona fide purchaser (BFP)
14
Q
Lease of real property
A
A lease of real property for any period of time is considered personal property.
15
Q
Doctrine of Emblements
A
The doctrine of emblements protects certain tenants’ rights to harvest crops when a tenancy ends unexpectedly. Life tenants, not tenants with lease who know when their tenancy ends
16
Q
Recovering personal property
A
The statute of limitations for bringing an action to recover personal property that has been adversely possessed is five years. Tacking is permitted
17
Q
Condo association
A
Only a condominium association itself has standing to sue regarding the misuse of common areas within the association; individual unit owners do not have standing.
18
Q
Virginia is a ___ recording jurisdiction.
A
Race-notice.
A subsequent purchaser must take without notice and must record their interest first.
19
Q
Under the real estate doctrine of merger…
A
provisions in a contract for sale are extinguished and merged into the deed. Therefore, if a buyer has a claim against a seller, then the basis of the claim must be based on the covenants in the deed, if any, and not on the contract itself.
However, provisions which are collateral to the passage of title and not covered by the deed are not merged into the deed and survive its execution. Such agreements are considered collateral to the sale if they are distinct agreements made in connection with the sale of the property:
-if they do not affect the title to the property,
-if they are not addressed in the deed, and
-if they do not conflict with the deed.
[From July ’18:] Collateral agreements don’t merge even where the parties have expressly agreed in the land sale contract that representations and warranties shall be merged into the deed. E.g. “the foregoing warranty shall be deemed merged into the deed at closing, and shall not survive” is not sufficient to make a warranty unrelated to title merge.
20
Q
To establish fraud, P must prove:
A
-false representation
-of a material fact
-made knowingly by D,
-with the intent to mislead and
-be relied upon by P
-to their detriment.
The element of misrepresentation can also be established by proving a concealment of a material fact.
Reliance may not be justified, however, when a potential buyer undertakes investigation regarding a matter at issue because the buyer is charged with knowledge that the investigation reveals or knowledge that would have been revealed had the investigation been pursued diligently.
21
Q
To establish a bailment, P must prove…
A
that goods were delivered to the bailee and that the bailee took physical control of the goods with intent to exercise that control.
22
Q
The duty of care for bailment is…
A
gross negligence if for the benefit of the bailor, ordinary care if for mutual benefit, and slight negligence if for the benefit of the bailee.
23
Q
To be an effective disclaimer or limitation of liability, the bailor must…
A
know of, or should have known of, and assent to the contractual limitation.
E.g., not a claim ticket with fine text.
23
Q
To prevail on a claim for inverse condemnation, P must establish that:
A
the property owner has some private property right,
(ii) the property or a right connected to that property has been taken or damaged by the government, (governmental action adversely affects the landowner’s ability to exercise a right connected to the property.)
(iii) the taking or damaging was for public use, and,
(iv) The government failed to pay just compensation.
Sovereign immunity does not apply to inverse condemnation.
Must be private property, not available between two government bodies.
24
Where an account is in joint tenancy with the right of survivorship, a creditor of one of the owners who is a judgement debtor ___ reach the debtor’s share of the account.
Can.
This results in a lien on the debtor’s right to receive the money in the bank account.
There is a presumption that when an account is owned by a husband and wife, they own it equally.
25
The owner of a tract of land can have a ___ in a ___ that allows the plaintiff to demand the owner of the servient tract refrain from specific uses of the land.
Negative easement; servient tract.
Can arise through representations and inducements to a purchaser of the property, such as representations that a conservation area would not be developed.
26
As to ___ trespassers, the land possessor must…
discovered or anticipated.
…warn of or make safe any conditions that are:
* Artificial
* Highly dangerous (involving risk of death or serious bodily harm)
* Concealed
* Known to the land possessor in advance
27
As to licensees…
the land possessor has a duty to warn of or make safe hazardous conditions that are:
* Concealed
* Known to the land possessor in advance
The land possessor must exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.
A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit. Social guests are considered licensees.
28
The landowner or occupier owes a duty to invitees regarding…
hazardous conditions that are:
* Concealed
* Known to the land possessor in advance or could have been
discovered by a reasonable inspection.
Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public).
An invitee will lose invitee status if they exceed the scope of the invitation.
29
A grant “to A and B as joint tenants and not tenants in common” creates what kind of interest in A and B?
A tenancy in common.
Such a grant must specify the right of survivorship.
30
The owner of a remainder can only transfer…
the remainder. Not a fee simple in the underlying property.
31
To Carl and his heirs so long as used for residential purposes only” creates…
A determinable fee in Carl and a possibility of reverted in the grantor.
When the condition is violated, title instantly reverts to the grantor in fee simple absolute.
32
To John for life, then to Lucas.” creates…
A life interest in John and a vested remainder in Lucas (which ripens upon the death of John into a fee simple absolute).
33
When a promissory note is secured with a deed of trust for land and the note is in default, the holder of the note may…
…have the land sold. The purchaser at the foreclosure sale will acquire title in fee simple absolute.
However, the debtor does have a right to pay off the security interest before foreclosure, and the seller has the right to satisfy the security interest at closing with the sale proceeds.
34
To show conversion, P must show:
(1) that the property interest is subject to conversion law;
(2) that P has an ownership interest in the property; and
(3) that D has interfered with that ownership interest.
Generally, conversion only applies to tangible property, although Virginia courts have found that an action may lie for the unlawful conversion of certain intangible property rights that have been documented.
35
If a grant demonstrates ___, then a purported tenancy by the entirety that fails for lack of m
the intent to create a survivorship interest.
…joint tenancy with the right of survivorship.
36
Three ways a tenancy by the entirety can be severed, which creates a tenancy in common:
Death of one co-tenant
Issuance of a divorce decree
Execution by a joint creditor (e.g., foreclosure).
37
How to partition a tenancy in common?
The first question in any partition suit is whether the property can be divided in kind, i.e., dividing the real property and improvement equally. Inquiry is practicability.
E.g., where part of the property had a residence on it, and part did not, partition in kind would be impossible.
If not, sale and division of proceeds.
A tenant in common or joint tenant “who places improvements upon common property at his own expense is entitled to compensation in the event of partition.” (Current value of improvements.)
38
Fraudulent transfer
Any gift, conveyance, assignment, or transfer made with the actual intent to hinder, delay, or defraud creditors is considered fraudulent and is void. Does not affect title of purchaser for valuable consideration with no notice of fraudulent intent.
Clear and convincing evidence standard.
39
Fee simple absolute
Absolute ownership of potentially infinite duration
Divisible, descendible, and alienable
"To A"
Future interests: None
40
Fee tail
Ownership that passes directly to the grantee's lineal blood descendants
"To A and the heirs of his body"
NOT USED ANYMORE. At common law, it becomes a fee simple absolute. In Illinois, it becomes a life estate with a remainder in the grantee's heirs.
41
Fee simple determinable
Ownership so long as a stated condition is not violated.
Durational language: "To A for so long as. . ." or "To A until. . ." or "To A during. . ."
Divisible, descendible, and alienable, but always subject to the condition.
Future interests: Possibility of reverter in the grantor
42
Fee simple subject to condition subsequent
An estate under which the grantor has the option to retake should a stated condition occur
Durational langage AND carving out the right to re-enter: "To A, but if X event occurs, grantor reserves the right to re-enter and retake"
Mostly devisable, descendible, but not alienable
Future interest: Right of re-entry
43
Fee simple subject to executory limitation
Fee simple determinable, but if the condition is broken, the estate automatically passes to someone other than the grantor.
"To A, but if X event occurs, then to B"
Devisable, descendible, and alienable, but always subject to the condition.
Future interest: Shifting executory interest
44
Defeasible fees
Conveyances subject to conditions.
Must be explicit
Conditions serving as absolute restraints on alienation are void.
45
Life estate
Estate measured in explicit lifetime terms
"To A for life" or "To A for the life of B"
Subject to the doctrine of waste
Future interests: If held by the grantor, it is a reversion. If held by a third party, it is a remainder.
46
Doctrine of waste
Life tenants may not engage in:
1. Voluntary or affirmative waste
2. Permissive waste
3. Ameliorative waste
47
Voluntary or affirmative waste
Overt conduct that causes a drop in value; willful destruction
Exceptions:
Prior Use (the land was used for exploitation prior to the grant)
Repairs (natural resources may be consumed for repairs)
Granted (may exploit if granted the right to do so)
Exploitation (the land is only good for exploitation
48
Permissive waste
Occurs when the land falls into disrepair
Life tenants have an obligation to repair and an obligation to pay ordinary taxes
49
Ameliorative waste
The life tenant must not engage in acts that will enhance the property's value unless all future interest holders are known and consent
50
Possibility of reverter
Held by the grantor and accompanies a fee simple determinable
51
Right of entry
Held by the grantor and accompanies the fee simple subject to a condition subsequent. O can choose to retake.
52
Reversion
Future interest that arises in the grantor who transfers an estate of lesser quantum than she has
53
Remainders
Types:
1. Contingent remainder
2. Vested remainder
a. Indefeasibly vested remainder
b. Vested remainder subject to complete defeasance
c. Vested remainder subject to open
Accompanies a preceding estate of fixed duration and waits patiently, so it never follows a defeasible fee
54
Contingent remainder
Created in an unascertained person or subject to a condition precedent (e.g. somehting must happen before the remainderman has a right to possession).
55
Indefeasibly vested remainder
Holder of the remainder is certain to acquire the estate in the future, with no strings attached
"To A for life, remainder to B"
56
Vested remainder subject to complete defeasance
Remainderman exists and his taking is not subject to any strings. However, his estate can be cut short because of a condition subsequent.
"To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C"
57
Vested remainder subject to open
Remainder is vested in a group of takers, at least one of whom is qualified to take, but each class member's status is subject to partial diminution because additional members can still join.
Class closes when any given member can demand possession, except an a child in the womb at the time of possession is entitled to join the class once born.
O will have a possibility of reverter
58
Shifting executory interest
Held by a third party after a defeasible fee (cuts short someone other than the grantor)
59
Springing executory interest
Held by a third party and cuts short the grantor or his heirs
60
Rule Against Perpetuities
The future interest must vest within 21 years after the death of the measuring life (preceding estate). If it will not vest, efforts will be made to eliminate the offending clause and keep the flavor of the conveyance.
Rights of first refusal to an ascertainable person or group of people are not a violation of the RAP.
Applies to the following future interests:
1. Contingent remainders
2. Executory interests
3. Certain vested remainders subject to open
61
Exceptions to the RAP
Conveyance from a charity to another charity.
62
Severance of a joint tenancy
Sale: Creates a tenancy in common with respect to the buyer and the other joint tenants at the time of entering into a contract
Partition: Voluntary, where Blackacre is physically broken up, or involuntary, where the court will force a sale
Mortgage: Title theory (joint tenancy is severed)
63
Tenancy by the entirety
Between married partners with the right of survivorship. It will arise presumptively in any grant to married partners.
Very protected: Creditors of one spouse cannot touch it, and neither spouse, acting alone, can defeat the right of survivorship
64
Tenancy in common
Two or more own with no right of survivorship
Three features:
1. Each tenant co-owns an individual part and each has the right to possess the whole
2. Each interest is devisable, descendible, and alienable
3. Presumption favors the establishment of a tenancy in common
65
Rights and duties of co-tenants: Possession
Each co-tenant is entitled to possession of the whole and the exclusion of one co-tenant from such possession will result in a wrongful ouster
66
Rights and duties of co-tenants: Rent
Absent ouster, a co-tenant in exclusive possession is not liable to the other for rent
A co-tenant who leases all or part of the premisies to a third party has a right to her share of the rental income
67
Rights and duties of co-tenants: Adverse possession
Absent ouster, a co-tenant who is in exclusive possession of the property for the statutory period has not adversely possessed the property
68
Rights and duties of co-tenants: Carrying costs
Each co-tenant is responsible for his or her fair share of carrying costs based upon his or her undivided share
69
Rights and duties of co-tenants: Repairs
Repairing co-tenant enjoys a right to contribution for reasonable, necessary repairs, provided that she has told the other co-tenants of the need
70
Rights and duties of co-tenants: Improvements
During the life of the co-tenancy, there is no right to contribution for improvements
71
Rights and duties of co-tenants: Waste
Co-tenants must not commit waste
72
Tenancy for years
Lease for a fixed period of time
Termination date is known from the beginning, so no notice is needed to terminate.
A term of years greater than one year must be in writing to satisfy the Statute of Frauds
73
Rent increase
If a landlord notifies a tenant of a rent increase prior to the previous lease expiring and the tenant holds over, the rent increase is valid.
74
Periodic tenancy
Lease which continues for successive intervals until either party gives proper notice to terminate. Can be formed expressly or implicitly
Implicit formation:
Lease with no mention of duration, but a provision is made for rent at set intervals. A periodic tenancy can be formed based on the periods rent is paid.
In commercial units, when a tenant holds over, a periodic tenancy can be formed based on the previous lease term, not rent intervals.
Termination:
Notice equal to the tenancy periods. Exception: Year-to-year tenancies require six months notice (In Illinois, year-to-year tenancies require 60 days notice).
Must terminate at the end of the natural lease period.
75
Tenancy at will
Tenancy for an indefinite time period.
Must be expressly created.
Termination can occur by either party at any time, but a reasonable demand to vacate is required.
76
Tenancy at sufferance
Occurs when a tenant has wrongfully held over past the lease expiration date. Landlord can recover rent for any time period wrongfully held over, regardless of whether he chooses to evict or hold the tenant to a new tenancy.
77
Tenant's duties
T must maintain the premises and make routine repairs, other than those due to ordinary wear and tear
T is liable to third parties invited by T for injuries
T must not commit waste
Generally, T may end the lease if the property is destroyed through no fault of T.
78
Tenants and fixtures
Removing a fixture is considered voluntary waste, even if the tenant installed the fixture.
EXCEPTIONS
Residential:
1. Is it a fixture?
2. Intent of individual who installed it
3. How much damaged would be caused if the chattel were removed
Commercial:
Commercial tenants are allowed to remove all trade fixtures before leaving.
79
When the tenant breaches his duty to pay rent
If T is in possession:
- Evict or continue the relationship or sue for rent due
- L cannot self-help
If T is not in possession:
- L can treat T's abandonment as surrender
- Ignore the abandonment and hold T responsible for the lease
-Re-let the property on T's behalf and hold him responsible for delinquency
80
Landlord's duties
Duty to deliver possession
Implied covenant of quiet enjoyment
Implied warranty of habitability
No retaliatory eviction
81
Landlord's duties: Implied covenant of quiet enjoyment
No wrongful eviction
No constructive eviction (SING):
Substantial Interference due to L's actions or failures
Notice: T must notify L of the problem
Goodbye: T must vacate once L fails to address the problem
82
Landlord's duties: Implied warranty of habitability
Applies only to residential leases and warrants the premises fit for basic dwelling
T can (MR^3):
Move out and end lease
Repair and deduct
Reduce rent
Remain and seek money damages
83
Landlord's tort liability
Common areas
Latent defects
Assumption of repairs
Public use
Short-term lease of furnished dwelling
84
Easement
Grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another's land
85
Affirmative easement
Right to do something on servient land
86
Negative easement
Entitles the holder to prevent the servient landowner from doing something that would otherwise be permissible.
Must be created expressly, by writing signed by the grantor.
Four types (LASS):
Light
Air
Support
Stream water from an artificial flow
**Minority: Scenic view
87
Easement appurtenant
Benefits the holder in his physical use or enjoyment of his own property. Will involve two parcels of land, the beneficiary land and the servient tenement.
88
Easement in gross
Confers upon the holder some personal or pecuniary advantage that is not related to his use or enjoyment of his own.
Involves only one parcel of land.
| Utility easement
89
Transferability of easements
Easements appurtenant pass automatically with the dominant tenement, regardless of whether the easement is mentioned in the conveyance.
Easements appurtenant pass automatically with the servient estate, unless the new owner is a bona fide purchaser without notice.
Easements in gross are not transferable unless they are for commercial purposes.
90
Creation of an affirmative easement
Prescription (use is continuous, open and notorious, actual, and hostile)
Implication
Necessity
Grant
91
Termination of an easement
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
92
Termination of an easement by estoppel
The servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement is no longer needed.
93
Termination of an easement by necessity
Easements created by necessity expire as soon as the need ends. EXCEPTION: If the easement is expressly created through a grant, it will continue after the need ends.
94
Termination of an easement by release
The easement holder gives the servient owner a written release
95
Termination of an easement by abandonment
Easement owner demonstrates by physical action the intent to never use the easement again.
96
Termination of an easement by merger
Occurs when the title to the easement and the title to the servient land become vested in the same person.
97
Termination of an easement by prescription
Servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession: Continuous interference; open and notorious use; actual use; and use hostile to the easement holder.
98
License
Mere privilege to enter into another's land for a delineated purpose. It is not subject to the Statute of Frauds.
99
Profit
Entitles its holder to enter servient land and take from it soil or some substance of the soil, such as minerals, timber, or oil.
Shares the rules of an easement.
A profit can be created by:
Express grant (must satisfy Statute of Frauds)
Prescription
Possibly implication (rare)
100
Covenant
A contract promising to do or not do something related to land. It is not a grant of property right.
101
Restrictive covenant
A promise not to do something related to land
102
Affirmative covenant
A promise to do something related to land
103
Transferability of a covenant
Step One: The burden of A's promise to B must run from A to A1 and will if:
- Writing between A and B
- Intent for the promise to run
- Touch and concern to land
- Horizontal and vertical privity
- Notice to A1 regarding the promise
Step Two: The benefit of A's promise to B must run from B to B1 and will if:
- Writing
- Intent
- Touch and concern
- Vertical privity
104
Horizontal privity
The nexus between A and B must be in succession of estate, meaning they were in a grantor/grantee relationship, a landlord tenant relationship, or a mortgagor/mortgagee relationship.
105
Vertical equity
The nexus between A and A1 and B and B1 must be non-hostile. This means there will be a contract, devise, descent, etc.
106
Equitable servitudes
An equitable servitude is a nonpossessory, recorded restriction on land use that "runs with the land," meaning it binds future owners and is enforceable via injunction (specific performance) rather than money damages. It requires intent, that the covenant "touches and concerns" the land, and notice to successors, but unlike real covenants, no privity is required.
107
Implied equitable servitude
Basically occurs to hold unrestricted land to the restrictive covenant of the majority of land/lots around it.
Requirements:
- Subdivider had a general scheme of one purpose, including the unrestricted lot-holder's lot.
- The unrestricted lot-holder had notice of the restrictive covenant (AIR: Actual notice, implied notice, or record notice)
108
Adverse possession
Elements:
- Continuous uninterrupted use for the statutory period
- Open and notorious possession that an owner would make
- Actual possession
- Hostile (without consent)
Tacking: Can tack predecessor's time on your yours so long as there is vertical privity between the two.
In order to sell a property you have possessed via adverse possession, you must go to a judge to quiet title the property to you or else you will not have marketable title.
109
Land contracts
Officially transfers ownership to B, subject to the condition that B pays at closing.
Subject to the Statute of Frauds, so it must in writing, signed by both parties, and describe the land (can amend/address issues via specific performance) and state some consideration
Risk of loss transfers to buyer
Two implied promises:
- S promises to provide marketable title at closing
- S promises not to make any false statements of fact
No implied warranties of fitness or habitability
110
Quitclaim deed
Contains no covenants; grantor transfers whatever title he has and might not actually have anything
111
General warranty deed
Warrants against all defects in title, including those due to grantor's predecessors
Covenants:
Covenant of seisin
Covenant of the right to convey
Covenant against encumbrances
Covenant for quiet enjoyment
Covenant of warranty
Covenant of further assurances
112
Statutory special warranty deed
Warrants against present defects in the title, makes no representations on behalf of predecessors.
Covenants:
Covenant of seisin
Covenant of the right to convey
Covenant against encumbrances
113
Covenant of seisin
Grantor owns the estate being transferred
114
Covenant against encumbrances
There are no encumbrances (e.g. servitudes or mortgages) on the estate being transferred
115
Covenant for quiet enjoyment
Grantee will not be disturbed in possession by a third party's lawful claim
116
Covenant of warranty
Grantor agrees to defend against reasonable claims of title by third parties and to compensate grantee for losses
117
Duty of care owed
to a plaintiff for dangerous conditions on the defendant’s premises depends on the plaintiff’s status as an entrant. The more the landowner or possessor anticipates or permits the presence of these entrants, the greater the duty of care owed
118
Trespassers
the duty owed to trespassers is limited compared to the duties owed to licensees or invitees. Specifically, for unknown trespassers, the law imposes no duty of care with regard to dangerous conditions on the premises though the landowner must still refrain from inflicting intentional or willful harm
119
Known trespasser
Once a trespasser becomes known to the landowner, a minimal duty arises to warn of or make safe any artificial conditions that are highly dangerous and concealed, if these conditions are known to the land possessor in advance.
120
duty to invitee
An invitee is a person who enters onto the land in response to an invitation by the owner of the premises either for a business purpose or as members of the public. The landowner owes to its invitees a duty to:
(1) to use ordinary care to have the premises in a reasonably safe condition for the invitees’ use consistent with the invitation, and
(2) to use ordinary care to warn its invitees of any unsafe condition that was known, or by the use of ordinary care should have been known, to the owner; except that the owner has no duty to warn its invitees of an unsafe condition which is open and obvious to a reasonable person exercising ordinary care for his own safety.
121
knowledge of defective condition
Generally, the plaintiff must introduce evidence of the owner’s actual or constructive knowledge of a defective condition on the premises. This can be shown by evidence that the defect was noticeable and had existed for a sufficient length of time to charge its possessor with notice of its defective condition. .
122
Requirements for equitable servitude
Contrast: Equitable Servitude
For equitable servitude (injunction remedy):
Writing
Intent
Touch and Concern
Notice
🚫 No privity required.
123
Requirements to enforce covenant (burden)
For the Burden to Run
Writing
The covenant must be in a signed writing that satisfies the Statute of Frauds.
Intent
The original parties must have intended the covenant to run with the land.
Touch and Concern
The covenant must affect the use, value, or enjoyment of the land.
Horizontal Privity
The covenant must have been created in connection with a transfer of an interest in land between the original parties.
Vertical Privity
The successor must hold the entire estate held by the original covenanting party.
Notice (modern addition)
The successor must have notice of the covenant.
124
Requirement of covenant (benefit)
For the Benefit to Run
Writing
Intent
Touch and Concern
Vertical privity (less strict — successor just needs some interest in the benefited land)
No horizontal privity is required for the benefit to run in most jurisdictions.
125
different easements
| Appurtenant | Benefits land |
| In gross | Benefits person |
| Express | Created by writing |
| By implication | Prior use + necessity |
| By necessity | Landlocked |
| By prescription | 20 years adverse use |
| Negative | Restricts use |
126
Tips for memorizing easements
Creation = Express, Implication, Necessity, Prescription
Type = Appurtenant or In Gross
Function = Affirmative or Negative
VA Civil Procedure
flashcards
Decks in class (12)
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