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Licenses - Chapter 7 - Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - 2nd Edition

 
Price:
$35.00
Author: Gerald Korngold
Page Count: 10
Published: October 2004
Media Desc: PDF from "Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes -2nd Ed"
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Originally from:

Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes - 2nd Edition - Hardcover

Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes - 2nd Edition - Electronic

Chapter 7 - Preview Page

§7.01 Definition

   Defining and conceptualizing licenses has been difficult for the courts and commentators. The First Restatement of Property uses the term “license” as a catchall, to include “the residue of those privileges of use of land arising out of the consent of the possessor of the land which are not included with
the definition of easements.”

   The Third Restatement of Property distinguishes licenses from easements by noting that the different between “a license to enter and use land and an easement to make the same use is that the license is revocable at will by the owner of the burdened land.” Similarly, the First Restatement defines a
license as an interest in land which another possesses which gives the licensee the right to use the land, arises from the consent of the landowner, is not an estate in land, and is not an easement.4 The courts generally agree with these formulations. They emphasize that a license is based on permission and consent, and is merely a privilege to use the land. Some courts stress the privilege aspect. Thus, a license was not created when a person was granted permission to enter land to perform a contract with the
landowner, as no privilege or benefit was granted by the permission. Additionally, licenses do not grant a possessory right but merely authorize entry on the property for a certain purpose. Moreover, many courts
expressly state that a license is not an interest in land. License issues often arise in the context of determining whether the use of another’s land was permissive, so as to prevent the establishment of a prescriptive easement.

Table of Contents

Full Table of Contents from "Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - 2nd Edition"

Preface

1 Introduction

-1.01 Historical Background and Approach of This Treatise

-1.02 Uses of This Treatise

2 Introduction to Easements

-2.01 In General

-2.02 Affirmative and Negative Easements

-2.03 Appurtenant versus In Gross Easements

-2.04 Profits à Prendre

-2.05 Current Applications

3 Creation of Easements

-3.01 Express Easements: Methods of Creation

-3.02 Language Necessary for Creation

-3.03 Sufficiency of Description

-3.04 Formal Requirements

-3.05 Easements Arising from Oral Grant or Permission

-3.06 Dedication

-3.07 Implied Easements

-3.08 Overview; First Restatement Test

-3.09 Theory: Intent and Public Policy

-3.10 Contrary Intent

-3.11 Easements by Necessity

-3.12 Severance

-3.13 Necessity

-3.14 Easements Based on Prior Use

-3.15 Quasi-Easement Theory

-3.16 Severance

-3.17 Necessity

-3.18 Apparent

-3.19 Continuous

-3.20 Implied Easements: Protective Strategies and Drafting Comments

-3.21 Easements Implied by Map or Boundary Reference

-3.22 Other Implied Easements

-3.23 Prescription

-3.24 Prescriptive Period

-3.25 Tacking

-3.26 Disabilities

-3.27 Nature of Adverse Acts

-3.28 Claim of Right

-3.29 Permissive

-3.30 Exclusivity

-3.31 Continuous

-3.32 Color of Title

-3.33 Interruption-Strategies to Prevent Prescription

-3.34 Prescription against Government and Charities

4 Scope and Protection of Easements

-4.01 Extent of Easements

-4.02 Express Easements

-4.03 Implied Easements

-4.04 Prescriptive Easements

-4.05 Retained Rights of the Servient Owner

-4.06 Interference by the Servient Owner

-4.07 New Uses: Proper versus Impermissible Uses

-4.08 Express Easements

-4.09 Implied Easements

-4.10 Prescriptive Easements

-4.11 Subdivision

-4.12 Use for Other Lands

-4.13 Location

-4.14 Maintenance and Alterations

-4.15 Remedies

-4.16 Injunctive Relief

-4.17 Damages

5 Succession and Transfer of Easements

-5.01 Enforcement against Purchaser of Servient Tenement-Movement by Operation of Law

-5.02 Notice Required

-5.03 Succession to Appurtenant Easements

-5.04 Transfer of the Dominant Estate

-5.05 Subdivision of the Dominant Estate

-5.06 Severance of Appurtenant Easements

-5.07 Transfer of Easements in Gross

-5.08 Traditional Rule against Transferability

-5.09 Commercial versus Noncommercial Easements

-5.10 Intention

-5.11 Divisibility

-5.12 Drafting Comments

6 Termination of Easements

-6.01 Theoretical Bases

-6.02 Terms of the Agreement; Drafting Comments

-6.03 Completion of Purpose

-6.04 Adverse Possession or Use

-6.05 Purchasers without Notice

-6.06 Overuse

-6.07 Alteration of Dominant Estate

-6.08 Release; Drafting Comments

-6.09 Abandonment

-6.10 Estoppel

-6.11 Merger

-6.12 Destruction of the Servient Estate

-6.13 Foreclosure

-6.14 Condemnation

-6.15 Tax Deed

-6.16 Marketable Title Acts

7 Licenses

-7.01 Definitions

-7.02 Licenses Distinguished from Other Interests

-7.03 Creation, Revocation, Termination, and Assignment

8 Introduction to Real Covenants and Equitable Servitudes

-8.01 The Nature of Covenants at Law and In Equity

-8.02 The Conflicting Policies: Freedom of Contract and Limiting Ties on Land

-8.03 Overlap with Other Interests

9 Elements of Covenants at Law and in Equity

-9.01 Overview

-9.02 Creation

-9.03 Express: Methods of Creation

-9.04 Express: Formalities

-9.05 Estoppel and Part Performance

-9.06 Implication; Implied Burdens

-9.07 Intent

-9.08 Intent That Covenant Run

-9.09 Persons Entitled to Enforce; Implied Benefits

-9.10 Touch and Concern

-9.11 Covenants against Competition

-9.12 Affirmative Covenants

-9.13 Drafting Comments

-9.14 Privity

-9.15 Enforcement in Gross

-9.16 Notice

10 Validity, Construction, Operation, and Enforcement of Covenants

-10.01 Validity

-10.02 Covenants Violating Public Policy

-10.03 Interaction with Zoning

-10.04 Construction and Operation-Rules and Maxims

-10.05 Building, Use, and Related Covenants

-10.06 Single Family Use; Group Homes; Age Restrictions

-10.07 Aesthetic and Architectural Controls

-10.08 Exercise of Power by Homeowners Governing Body

-10.09 Subdivision Assessments

-10.10 Restrictions on Competition

-10.11 Enforcement

11 Duration, Termination, Defenses, and Amendment of Covenants

-11.01 Duration-In General

-11.02 Termination and Defenses

-11.03 Release or Agreement

-11.04 Merger

-11.05 Waiver, Abandonment, and Estoppel

-11.06 Laches and Unclean Hands

-11.07 Changed Conditions

-11.08 Relative Hardship

-11.09 Foreclosure

-11.10 Tax Deed

-11.11 Condemnation

-11.12 Marketable Title Acts

-11.13 Amendment and Modification

Table of Cases and Statutes

 

Index

 

Author Detail

Gerald Korngold Gerald Korngold is Professor of Law at New York Law School in New York City and a Visiting Fellow at the Lincoln Institute of Land Policy in Cambridge, Massachusetts. He is the former Dean of Case Western Reserve University School of Law.

Professor Korngold is an elected member of the American Law Institute (ALI) and the American College of Real Estate Lawyers. He served as an Advisor to the ALI's Restatement of Property (Third) - Servitudes. Professor Korngold is also the author of Cases and Text on Property (with French, Vander Velde, Casner & Leach); Real Estate Transactions: Cases and Materials on Land Transfer, Development and Finance (with P. Goldstein) and Property Stories (co-edited with A. Morriss).