Lesson 8.3: Easements, Covenants, Fixtures, and Zoning

Introduction

In this lesson, we will explore crucial concepts surrounding real property law, specifically focusing on easements, covenants, fixtures, and zoning. The objectives are to:

1. Understand the creation, scope, transfer, and termination of easements, profits, and licenses.
2. Grasp the principles of restrictive covenants and equitable servitudes.
3. Identify whether a covenant or servitude runs with the land and binds successors.
4. Analyze the creation and scope of easements and treatment of fixtures.
5. Familiarize ourselves with zoning fundamentals.

These concepts form the backbone of property law and are frequently tested in the Uniform Bar Examination (UBE).

1. Easements

1.1 Definition and Types of Easements

An easement is a legal right to use another person's land for a specific purpose. Easements are classified into several types:

• Express Easements: Created by the explicit agreement of the parties, typically in writing, and must comply with the Statute of Frauds requirement for real estate.
• Implied Easements: Arise from actions or circumstances when a property is sold or subdivided. Importantly, if the use was apparent and continuous prior to the transfer, it typically creates an implied easement.
• Prescriptive Easements: Arise when a party uses the land of another openly and continuously for a period prescribed by law, commonly 5 to 20 years.

1.2 Creation of Easements

For an easement to be validly created, typically the following elements are necessary:

1. Intention: The grantor must intend to create the easement.
2. Proper Execution: The easement must be documented properly if it is an express easement (in writing).
3. Beneficial Use: The easement must confer a benefit to the dominant estate (the property benefiting from the easement).

1.3 Examples of Easements

Example 1: Express Easement

Suppose Adam owns a parcel of land next to Bella's property. They agree in writing that Bella can cross Adam's land to access a nearby lake. This agreement is an express easement.

Example 2: Prescriptive Easement

Charlie starts using a path through Diana's property to reach the river without permission. After using it for 10 years, he has established a prescriptive easement to continue using that path.

1.4 Termination of Easements

Easements can be terminated in several ways:

• Release: The holder of the easement voluntarily relinquishes it.
• Expiration: The easement expires when its set time limit lapses.
• Abandonment: If the holder does not use the easement for a significant period, it may be considered abandoned.
• Merger: If the dominant and servient estates (the land burdened by the easement) come under common ownership.

2. Covenants and Equitable Servitudes

2.1 Definition of Covenants

A covenant is a promise in a deed or lease to do or refrain from doing something on the property. They run with the land, meaning they apply to future owners of the property and are binding upon them under certain circumstances.

2.2 Types of Covenants

• Affirmative covenants: Require the landowner to undertake a specific action (e.g., maintaining landscaping).
• Negative covenants: Prevent the landowner from undertaking specific actions (e.g., prohibiting the construction of high fences).

2.3 Requirements for a Covenant to Run with the Land

For a covenant to bind successors, it must satisfactorily meet several requirements:

1. Intention: The original parties intended for the covenant to bind successors.
2. Touch and Concern: The covenant must "touch and concern" the land, meaning it must affect the land's value.
3. Horizontal and Vertical Privity: There must be both horizontal privity (some relationship between original parties) and vertical privity (the relationship between the current landowner and the original covenanter).

2.4 Example of a Covenant

Example: If a land developer allows some home buyers to build homes only if they paint their homes a specific color, it could be an affirmative covenant running with the land if it meets all elements mentioned above.

3. Fixtures

3.1 Definition

A fixture is a piece of personal property that has become attached to real property in such a way that it is now considered a part of the real property. The determining factor is the intention of the parties and the degree of attachment.

3.2 Categories of Fixtures

• Trade Fixtures: Items placed by a tenant in a rented space for business purposes. These can often be removed upon lease termination.
• Residential Fixtures: Typically include things like cabinets or light fixtures that are meant to remain with the property after sale.

3.3 Determining Test for Fixtures

The common test for determining if an item is a fixture involves:

• Intent: Did the person intend to make it a permanent part of the property?
• Annexation: Is the item physically attached to the property?
• Adaptation: Is the item specifically adapted to the use of the property?

3.4 Example of a Fixture

Example: A hot tub that is permanently installed and plumbed into the ground is considered a fixture, while a free-standing hot tub, which the owner could take away at any time, is not.

4. Zoning Fundamentals

4.1 Definition

Zoning refers to the legislative process by which municipalities regulate land use and development to control the character of a community. Zoning laws designate specific areas for different uses, such as residential, commercial, industrial, etc.

4.2 Types of Zoning Regulations

• Use Zoning: Defines what types of activities can occur in a given area.
• Bulk Zoning: Controls the density of development. For example, how tall buildings can be or the maximum amount of structure permitted on a property (Floor Area Ratio).
• Environmental Zoning: Protects specific environmental features like wetlands or floodplains from development.

4.3 Zoning Changes and Variances

• Zoning Changes: To change the zoning designation of a property, property owners usually must apply to the local governing body.
• Variances: May be granted to allow a property owner to deviate from strict zoning laws, usually due to unique circumstances regarding the property.

4.4 Example of Zoning

Example: If a city designates a particular area as residential, commercial activities, such as opening a bar, would generally be prohibited in that zone.

Conclusion

In this lesson, we have explored the essential elements of easements, covenants, fixtures, and zoning. Understanding these concepts will help students navigate the intricate landscape of real property law, critical for success on the Uniform Bar Examination. Paying close attention to defining characteristics and legal requirements is essential as you prepare closely for tests where precision is vital.

Study Notes

• An easement is a legal right to use another's property.
• Covenants run with the land and bind successors.
• A fixture is a previously personal item that has become part of real property due to attachment.
• Zoning regulates land use within municipalities, categorizing areas for specific purposes.
• Always consider intent, annexation, and adaptation when determining if something is a fixture.
• The running of covenants requires intention, touch and concern, horizontal, and vertical privity.