Discussion14
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Purdue Global University *
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700
Subject
Law
Date
Feb 20, 2024
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docx
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Module 14 Discussion Document
1. Developer purchases 60 wooded acres containing a 5-acre lake. Developer then subdivides the property into lots, recording a plat which names the property Lake Lawn Acres and states that the owners of three identified oversize lots (4, 9, and 15) may not build on a 15-foot wide strip of land on the east sides of their respective lots in order to provide access points to the lake for the other lot owners of Lake Lawn Acres. A buys lot 4 from Developer, and sometime later begins building a fence across the 15-foot wide strip of land on the east side of lot 4. B (the owner of lot 21) sues A, asking the court to order A to remove the partially constructed fence and to enjoin A from building a fence on the
15-foot wide strip of land on the east side of lot 4. What type of interest is B seeking to protect? Be specific and explain your answer.
Easements are normally created in one of two kinds of written documents or instruments; the Deed of Land in which an easement is granted or reserved or the Deed of Easement (free-standing document
). Express Easement By Reservation; this is an easement that is created when the owner of one large piece of land splits the land into two or more pieces and places an easement on one or more of those pieces at
the time that the land is split apart. Easements may be created to benefit the use and enjoyment of another parcel of land.
Here the developer created an express easement by reservation when he recorded the plat named “Lake Lawn Acres and states” identifying the lost 4,9,15. So the community has
access to the lake. Also, the developer created an Equitable Servitude
. Servitudes: "servitudes" generally
are burdens upon one's estate in land that (1) limit the estate owner's use of the burdened property and (2) benefits someone other than the landowner or possessor. An equitable servitude is a promise that restricts the use of land in some way that is designed to be enforced with specific performance rather than with monetary damages. Equitable Servitude
can sometimes be enforced against successive property owners if five conditions are met; 1.
The covenant must have been in writing
2.
The intention for the covenant to run with the land
3.
“Touch and Concern.”
4.
Notice Here the developer registered the plat with the condition to the new owner that they may not build on a
15-foot wide strip of land on the east sides of their respective lots in order to provide access points to the lake for the other lot owners of Lake Lawn Acres. Here, he met the elements of equitable Servitude named above; the facts do not specify that A did receive the notice, but it can be inferred that he received it when he bought the lot. B is protecting his interest to access the easement as a resident of the named Estate. 2.
A (the owner of Farmacre) leased part of Farmacre to Power for a period of 99 years, so that Power
could build a wind turbine on A’s land. In the lease, Power and A agreed that A would not allow any trees to grow within 200 yards of the part of Farmacre leased to Power, and that the provisions of the lease would bind their respective successors. A recorded the lease. Shortly after Power completed construction of the wind turbine, A sold Farmacre to B who plans to operate a commercial orchard on Farmacre. When B began planting apple trees near the part of Farmacre leased by Power, Power sued for damages based on the lowered power generation capacity that would be caused by the impact of trees near the wind turbine. What type of interest is the basis for Power’s lawsuit? Be specific and explain your answer.
An
express real covenant
is created directly by the meaning of the parties' words. Although a covenant is
not an interest in land per se, it is nevertheless covered by the Statute of Frauds. Therefore, a covenant that is, by its terms, to last for more than one year must be in writing to be enforceable. Real covenant
can sometimes be enforced against successive owners of the property. If a covenant can be enforced against successive owners, it is said to “run with the land.” This means that, like an easement, the covenant can remain effective even if the land is transferred to a third party. In this case, A leased to Power for 99 years under the condition that A would not allow any trees to grow within 200 yards of the
part of Farmacre leased to Power. Since A transferred the burdened state to B, there was “vertical” privity between the parties who agreed to the covenant. Then A sold his interest in the land to B; the benefit runs with the land if elements of writing, intent, “touch and concern,” and vertical privity are present. In this case, all the elements are present. There is a written lease that states the intent not to grow any tree on the west side of Farmacre. The elements of horizontal privity and notice are unnecessary for a benefit to run with the land. The reason notice is unnecessary is that the buyer of the benefited estate would clearly always want the benefit to run. Therefore Power is defending base on real
covenant interest .
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