Property Law For Dummies
To make use of property law, you have to be able to apply it to factual situations. This Cheat Sheet summarizes some of the more important or difficult property law rules and gives you a quick reference on how to apply them.
Determining Whether a Covenant Runs with the Land
A person who makes a covenant to another is bound by her promise, and the other person can enforce it in court. But if someone else seeks to enforce the covenant, or if someone seeks to enforce the covenant against someone other than the original covenantor, you have to decide whether the covenant applies to those people who weren’t parties to the covenant.
Someone other than the original party can enforce the covenant against a successor to the original covenantor if the following are true:
The covenant touches and concerns the original party’s land, meaning the performance of the covenant somehow affects the land.
If a successor seeks to enforce the covenant, the original parties intended the covenant to be enforceable by successive owners of the benefitted land. If someone seeks to enforce the covenant against a successor to the original party, the original parties must have intended the covenant to be enforceable against successive owners of the original covenantor’s land.
The original parties had horizontal privity (they created the covenant when one of the parties was transferring one of the subject properties to the other, or they made the covenant related to a leasehold or easement), and the successor has vertical privity with the original party whose position she is taking over (she succeeded to the original party’s estate in some or all of her land); or, alternatively, the person against whom the covenant is to be enforced has notice of the covenant right belonging to the enforcing party.
An easement is a right of one person to use (or control the use of) another person’s land. You can create an easement in any of the following ways:
By express agreement: If the agreement isn’t evidenced by a writing satisfying the statute of frauds, you have to prove estoppel or part performance in order to enforce the agreement.
By implication: An easement is implied by prior use when an owner has been using part of his land to benefit another part of his land in some way that’s apparent, continuous, and reasonably necessary and then transfers one of those parts to someone else. An easement is implied by necessity when a landowner transfers part of his land and one of the resulting parts thereby loses any access to a public street. The filing of a subdivision plat also implies that lot owners have easements that are shown on the plat.
By prescription: You acquire an easement by using someone else’s land openly and continuously as if you have the right to do so for a period of time specified by state statute.
Zoning Flexibility Devices
Sometimes, zoning laws get in the way of a landowner's desires. If a landowner wants to use her land in some way that a zoning ordinance doesn’t allow, here are the steps she can take:
If she’s already using her land in that way, determine whether that use precedes the zoning regulation so that it’s protected as a nonconforming use.
All zoning ordinances protect preexisting, nonconforming uses to some extent.
If her desired land use isn’t protected as a nonconforming use, determine whether the zoning ordinance lists her desired use as a conditional use in that zone.
If it does, find the conditions that the ordinance requires to be satisfied and apply for a conditional use permit. If it doesn’t, just move on to the next step, because you can’t get a conditional use permit if the use isn’t listed as a conditional use.
Apply for a variance.
To get a variance, typically the landowner must prove that she can’t get a reasonable return from her property as zoned because of the unique physical circumstances of her property, and she must prove that granting a variance wouldn’t alter the essential character of the area.
Petition the city or county to amend the zoning ordinance, usually to give the landowner’s property a different zoning designation that permits her desired use.
If all of the preceding actions fail, or if any of them are unavailable or would be futile or unduly burdensome to pursue, the landowner can then consider challenging the constitutionality of the regulation in court
Examples of such a challenge include claiming that the regulation denies substantive due process or equal protection or is a taking of the landowner’s property requiring just compensation.
Present and Future Estates
You can figure out which present and future estates an instrument creates by reading the granting instrument carefully and asking yourself these questions in order:
When this instrument takes effect, who will have the right to possess the land first?
You can call this person A.
When will that person’s right to possess end?
If the instrument doesn’t say anything about his possession ending, A has a fee simple absolute.
If A’s right to possess will end at his death or the death of someone else, A has a life estate. If the instrument says someone else (call her B) gets to take possession when that death occurs, B has a remainder. Otherwise, the grantor has a reversion.
If A’s right to possess will end on a particular date or when one of the parties decides to end his possession, A has a leasehold. If the instrument says someone else (B) gets possession when the leasehold ends, B has a remainder. Otherwise, the grantor has a reversion.
If A’s right to possess will end when a specified condition occurs, ask yourself the next question.
Who will have the right to possess when the specified condition occurs?
If the instrument says someone other than the grantor, A has a fee simple subject to executory limitation and B has an executory interest. Otherwise, ask yourself the next question.
Does the instrument say that A’s right of possession automatically ends when the condition occurs — that the estate lasts only as long as the condition doesn’t occur?
If so, A has a fee simple determinable and the grantor retained a possibility of reverter.
If not, A has a fee simple on condition subsequent and the grantor retained a right of entry.
An instrument can create several future estates in a row. So after you’ve gone through the preceding list of questions, if A doesn’t have a fee simple absolute and therefore someone has a future interest, start at the top of the list again; this time, ask the questions about the right of possession after that future interest takes possession. That will tell you which present estate the future estate holder will have after she takes possession and whether more future estates follow. Keep doing that until you find someone who has a future estate in a fee simple absolute.