BSL 333

Prior Appropriation Doctrine

- A water allocation scheme that grants the rights to water to the first who uses the water. - The first party who takes or uses the water for its carried benefits is the party with the legal claim to the use of the water

general contractors

- have an agreement with property owners to offer specific services

ambiguity in property descriptions

A description of real property that can fit multiple different property locations NOTE: the flaw of not having a valid legal description is defined as ___________. NOTE: ____________ will result in the possibility of real property not being transferred, or lien interests being unsecured.

Legal description of property

A description of such certainty and accuracy that one can go to the ground and identify the land- a description prepared by a surveyor NOTE: What is transferred and conveyed is what is described in the legal description

Promissory Estoppel

A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if the enforcement of the promise will better serve justice.

types of property interests

Surface Rights Airspace Rights Subsurface Rights

Termination by estoppel

- A party will be stopped by the court from arguing that they have easement rights because that fact was never brought up in the past. - based on reasonable reliance of abandonment from the servient estate. EXAMPLE: Owner of servient estate thinks owner of dominant estate has abandoned easement and constructs improvements on easement in reliance of abandonment

Implied Easement

- A right of use not created by an explicit deed or explicit clause in a deed. - Automatically granted if certain specific conditions are met.

termination by prescription

- Can occur if the servient property owner successfully prevents the use of an easement for a continued period of time (prescriptive period) NOTE: the guidelines of prescriptive easements are the same for both creation and termination

Prescriptive Easement

- Easement created when a person uses real property for a continued period of time without the owner's permission.

termination of express easements

- Easement will terminate according to predetermined in the written agreement (terms and conditions) - may be based on a specific time period, purpose, change of ownership, etc...

Fountainbleu V. Eden Roc

- Eden Roc sues Fountainblue over the construction of a new building that would block sunlight directed at Eden Rocs Pool - Tried to apply doctrine of ancient lights, but could not prove 20 years of prior uninterrupted use - the legal issue was whether or not Sountainblues addition infringed with Eden Rocs property rights (the answer is NO) - Fountainblue has every right to enjoy their property as they see fit, Eden Rocs property ownership doesn't come with the right to a view. Rules of Law used: 1) right to enjoy property in absence of an easement or obligation that prohibits the desired use 2) no one is entitled to a view or light that is hindered by another's enjoyment of their own property

Riparian Doctrine

- Everyone is given similar usage rights when it comes to water. - Rights are equal among users, and everyone has a claim to reasonable water use.

Ontiveros v. Sanchez

- Mechanic's lien (sometimes referred to as a construction lien or a supplier's lien in various jurisdictions). In the case provided, the subcontractors (Rawson for building materials and Ontiveros for insulation and heating system installation) were not paid due to the bankruptcy of the general contractor, Parker. These subcontractors would typically have the right to place a lien on the property for which they provided services and materials, ensuring they would be paid. - Case mentions that due to the homeowners' mortgage defaults and the subsequent foreclosure and redemption processes, the properties were redeemed "free and clear of any liens." So basically any mechanic's lien that might have existed was cleared away in the foreclosure process, making it difficult for the subcontractors to claim their due directly from the property. Hence, they resorted to an unjust enrichment claim in an effort to get paid. Rule of law: If a subcontractor has exhausted all available legal remedies, then a court may provide that party with a recovery under unjust enrichment, if in fact a party has been unjustly enriched.

Requirements of prescriptive easements

- Must show actual use of someone else's property for a specific period of time determined by law (usually 5-10 years) - the use of the property must be open and notorious (one cannot hide use) - The use must be reasonable and continuous - the use must be adverse, meaning it must be executed without permission from the property owner

Easement

- Nonpossessory right to use and/or enter onto the real property of another without possessing it. - can run on in perpetuity

Limitations to the Rule of Capture

- One cannot maliciously prevent one from exercising their right - One may not intentionally extract in a way that aims to steal material from a neighboring property, the extraction must be intended for the property owners subsurface area (Doctrine of Correlative Rights)

trespass

- The intentional interference with landowners' reasonable use and enjoyment of their property. - requires that the person is physically on the property

Fee simple absolute estate

- The maximum possible estate or right of ownership of real property, continuing forever. - Property owner holds all property interests

consent lien state

- There is no requirement for a contract between the contractor and the property owner. - so long as the property owner knows about and is aware of the work (consented to it), the other party can file a lien for unpaid services or materials

lien release

- a document signed by a lien holder showing accepted payment and release of the lien

Lien Waiver

- a document signed by the contractor that waives rights to file a lien - a contractor would sign this waiver if they are paid upfront for services to be completed

construction/mechanics lien

- a lien created to prevent the unjust enrichment of the property owner. - since real improvements were made, the property value will go up - therefor, considering the owner's enrichment, they must pay the party/parties that made improvements which caused the enrichment.

lien

- a secured property interest held by a third party that imposes an obligation on the property for repayment of the lien amount - places an encumbrance or restriction on the property rights held by the owner of the real property subject to the lien - property owner cannot sell or transfer ownership while a lien is present

conservation easement

- a specific type of negative easement that prevents a property owner from harming a historical/environmental significance of the property

property subject to liens

- all real property NOTE: there is an exemption for all government property unless specifically authorized.

Express Easement

- an easement created by a written agreement between two or more parties - can be an Express easement by grant or an express easement by reservation - Can be found in the deed or a separate contract

Equitable Remedies

- any form of relief that does not involve a request for monetary damages - used if one cannot establish a breach of contract (leading to the absence of a legal remedy) Types: injunction: gets someone to stop doing something restitution: gives compensation to people effected by unjust enrichment

subcontractors

- are separate independent companies that have contracts with the general contractor and sometimes with the property owner.

easement by reservation

- arises when the dominant owner grants the servient land to the servient owner but retains or reserves an easement over that property

easement by grant

- arises when the servient owner grants an easement to the dominant owner

Easement in Gross

- benefits a party that is not the adjacent property owner EXAMPLE: telephone poles that can be accessed by a utility company

a description of property is valid when

- descriptions are done in a way such that it is only possible for 1 property in the entire world to fit the description - descriptions encompass the exact location and boundaries of the property so much so that the property at hand is the only property that can fit the description

Affirmative Easement

- easement holder has some right to use or access anothers property.

Judicial Lien

- granted by a court and is secured on the defendant's property to secure payment of a prior judgment.

Negative Easement

- holders of the easements prevent other property owners from using their property in a particular way or prevent particular acts by other landowners EXAMPLE: easement restricting the heights of buildings on adjoining property.

Tax Lien

- liens filed by a government for nonpayment of one's property taxes, state taxes, sales taxes, income taxes, federal income taxes, etc...

Government survey legal description

- method of describing location by using meridian (35) and baselines (32) - these lines were derived from when the government initially surveyed the United States - the lines create a grid of the United States (each 6 cubic mile squares) - each grid square is further divided into 1 square mile sections Not commonly used anymore

contract lien state

- parties must have a contractual agreement with the property owner in order to file a lien on the subject property

Legal Remedies

- relief sought from a court involving monetary damages - can only be given if a valid contract is present

Rule of Capture

- rule for establishing ownership of subsurface sectors - the owner of an oil or gas well could claim all that is pumped from it, regardless of whether the oil or gas migrated from adjacent property - ownership is only established once materials are extracted and harvested

U.S. V Causby

- the Causbys originally sued the US government for trespassing through their air rights - the Causbys win the case, but not under an allegation of trespassing, but rather a nuisance violation. - Court case that decided air property rights; you have rights to the air to the extent that you can occupy and use it. - Reasonable use of the adjacent airspace Rules of Law: 1) Nuisance violation instead of a trespassing claim. 2) air rights only extend to the super adjacent usable airspace

Appurtenant Easement

- the easement benefits an adjacent property owner - the properties must be next to each other EXAMPLE: a person lets his neighbor park his car in his driveway

Easement by necessity

- the subject property must be landlocked - the easement must be absolutely necessary to access the property - It must be near impossible to access the subject property without an easement right to use another's property. - there is no prior use requirement or quasi easement requirement for an easement by necessity - the easement only lasts so long as necessity is continued.

Nuisance

- the unreasonable interference with others use and enjoyment of their property - The interference is brought about by a party that has not physically entered the property

Plat map legal description

- uses a map of a subdivision (also called a plat), which is recorded in public records. - defines the exact location of the property on the plat - defines all boundaries and specifications of the property ( block number, lot number, street names, alley ways, easements, etc...)

Metes and Bounds legal description

- uses marking points and boundary lines to identify the exact location of the property - used to be very common but are less common now due to issues in identifying exact property locations EXAMPLE: if a beginning point was an artificial piece of material, like a bridge, and the bridge were destroyed, it would become unclear where the exact boundaries are

termination by abandonment

- when the easement holder, through conduct of nonuse, demonstrates that they have permanently abandoned the use of the easement EXAMPLE: a person allows an easement path to fall into disrepair and grass and trees cover and take over the path

Doctrine of Ancient Lights

-Doctrine that anyone who used light for an uninterrupted period of 20 years was entitled to protection of that use - historically rejected by American courts

Water Rights

-Separate from property rights -Not considered ownership of the water -One may use or take the water for their benefit Available to property owners who live adjacent to water or have water in their subsurface space

3 Methods to describe Real Estate

1) Metes and Bounds legal description 2) Plat map legal description 3) Government survey legal description

Types of 3rd parties

1) Trespassers - persons on the property of another without permission (thief) 2) licensees - persons on the property of another who have some form of implied permission to be there (firefighter) 3) invitees - persons on the property of another by express invitation (customer in a store)

requirements of implied easements

1) a partition of land must occur - there was a single owner who now shares his or her land due to a partition and transfer of property (Unity of ownership) 2) prior to the partition, an identifiable route or quasi-easement must be present 3) the quasi-easement must be apparent, identifiable, and previously in use. Quasi-easement must also be used continuously (even seasonal continuous use works) 4) it must be demonstrated that not using the easement will cause unnecessary expense - it would be unreasonable to use an alternative access route NOTE: NO WRITTEN AGREEMENT

Types of Liens

1) construction/ mechanics lien 2) contractual lien (mortgage) 3) Tax lien 4) Judicial Lien NOTE: some but not all liens contain a right to foreclosure (mortgage and tax liens)

who can file construction liens

1) general contractors 2) subcontractors 3) persons supplying labor 4) persons supplying materials

Methods of Termination for all types of easements

1) unity of ownership is reestablished 2) termination by abandonment 3) termination by prescription 4) termination by estoppel

Statute of Frauds

A state statute under which certain types of contracts must be in writing to be enforceable.

Tacking

Adding or combining successive periods of continuous occupation of real property by adverse possessors. This concept enables someone who has not been in possession for the entire statutory period to establish a claim of adverse possession. (adds previous owners period of adverse prescriptive use to the current owners period of adverse prescriptive use )

Unjust Enrichment (Restitution)

An equitable principle asserts that one receiving a benefit at another's loss owes restitution to the other.

Airspace Rights

Flights over privately owned land normally do not violate property rights unless the flights are so low and frequent that they directly interfere with the owner's enjoyment and use of the land (nuisance) In U.S V Causby the court identifies airspace ownership as the super adjacent space that can be reasonably used.

Perfected security interest

One must: 1) show that notice of the lien was given to the property owner and lender (if applicable) 2) file lien interests at the office of public land records for that area (called recording) 3) include a description of the property (THE DESCRIPTION MUST BE EXTREMELY ACCURATE) 4) follow all requirements for creation and recording in public records

Priority of Liens

Property taxes and special assessments, then in order of time and date files (pure race), except mechanics lien, which dates to date labor began or materials were first provided. NOTE: a perfectly secured lien interest takes priority of all unsecured lien interests. NOTE: Liens will usually always be ordered by the date of filing. However, depending on the construction statute in a given state, the effective date may be the date construction began instead of when the lien was filed.

Meine v. Hren Ranches

The Hrens argue that a prescriptive easement can only be present if the properties are connected (failed). They then argue that an easement in gross must be an express easement (failed)

invitee legal duty

The property owner is liable for any intentional injuries incurred by the _______ and for any known or unknown defects that cause injury

Licensee legal duty

The property owner is liable for any intentional injuries incurred by the ___________, and for any known defects that cause injury

limitations on lien repayment amounts

The property owner will only be liable for the maximum contract price specified in the original agreement

Dianne v. Wingate

The rule of law applied: the servient property owner may use their land however they please so long as they don't unreasonably interfere with the easement holder's reasonable use.

Servient Estate

The tract of land burdened by an easement.

Denco CS Corp v Body Bar LLC

The trial court ruled that neither the constitutional mechanic's lien nor the statutory mechanic's lien held by Denco were valid. Denco was not in a direct contract with the owner of the property, only with Body Bar. Since Body Bar was leasing the property and not the owner, the liens only could have applied to Body Bar's leasehold interest and not the overall property. Rule of Law: 1) when the construction contract is not made with the property owner, a lien cant be attached to the property 2) If a tenant enters into a construction contract, the lien attaches only to the lease interest, and not to the property owner.

Types of Equitable Remedies

Unjust enrichment (quasi-contract) - leads to restitution Promissory estoppel

privity of contract

a contract must be present to take action

foreclosure

a lienholders right to initiate sale of the subject property so that their lien can be paid in full

Dominant Estate

property that benefits from an easement

subsurface rights (mineral rights)

rights to the earth located beneath the surface of the land can be sold and ownership can be transfered Oil and Gas reserves

termination of easements by necessity

the easement is terminated following the absence of strict necessity

Trespass legal duty

the property owner is liable for any intentional injuries incurred by the ____________.

Eminent Domain

the right of a government or its agent to take private property for public use, with payment of compensation.

Surface Rights

the rights to access the surface area of a parcel of real property