3. Servitudes

Question 1

EASEMENT:

Answer 1

Non-possessory property interest that confers a right to use another’s land.

♣ Servient estate: burden land
♣ Dominant estate: benefited land

Question 2

EASEMENT: Type of Easements

Answer 2

♣ Easement Appurtenant
• Entitles a dominant estate owner to use a servient estate’s land
o Attaches to the dominant estate and passes automatically (even if not mentioned in a conveyance).

♣ Easement in gross
• Entitles an individual or entity (not a dominant landowner) to use the servient estate
o Does not attach to land; there is no dominant estate

o Similar to a license but irrevocable; may be transferred. (*LOOK AT FL EXCEPTION)

♣ Affirmative easement
• Entitles its holder to make affirmative use of the servient estate.

♣ Negative easement
• Entitles its holder to restrict the servient estate from otherwise permissible activities.

Question 3

EASEMENT: creation

Answer 3

♣ Easements may be created by prescription, implication, necessity or expressly by grant or reservation

Question 4

EASEMENT: Scope of Easement

Answer 4

o An easement’s scope is determined by the terms or conditions that created it.
♣ In interpreting an easement’s scope, courts will consider the reasonable intent of the original parties.

o Expansion
♣ Easement holders cannot unilaterally expand scope of their easement
• Overuse or misuse of easement does not terminate easement
♣ Remedy for violation: INJUNCTION

o Duty to Repair
♣ Easement holder has duty to make repairs if he is sole user
♣ If both servient landowner and easement holder use easement, repair costs are apportioned.

Question 5

Express Easement (Easement by Grant or Reservation)

Answer 5

Easement may be expressly created by grant or reservation.

GRANT:
♣ An express grant of the easement
• Created by instrument (e.g. written agreement) in which the servient estate owner gives easement to owner of dominant estate

RESERVATION:
♣ Grantor conveys title to land but reserves the right to continue using the land for a designated purpose.
• Grantor may only reserve an easement for himself
o Void if reserved for the benefit of another
• E.g., O conveys property to A, reserving an easement allowing access to a path across the property
o Requirements: (express easement must be)
♣ 1. In writing (otherwise will violate the SoF) and
♣ 2. Signed by the servient estate holder

Question 6

Easement by Prescription

Answer 6

Process of acquiring easement; similar to acquiring title by adverse possession

Requirement:
♣ 1. CONTINUOUS: for applicable statutory period
♣ 2. OPEN and NOTORIOUS: owner knows or should know of use
♣ 3. ACTUAL
♣ 4. HOSTILE: without owner’s permission

An easement can also be terminated by prescription if servient landowner interferes with easement sufficiently to satisfy above requirements.

Question 7

Easement by Implication

Answer 7

An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots.

Requirements:
♣ 1. Easement exists prior to division of a single tract of land
♣ 2. Common grantor’s use is continuous and apparent
♣ 3. Use is reasonably necessary for enjoyment of the dominant tenement; and
♣ 4. Parties intended the use to continue after division of the land

Exceptions:
♣ Easement may be implied without prior use where:
• 1. Subdivision plat: lots in a subdivision are sold with reference to a map plan or
• 2. Profit a prendre: holder of a profit a prendre has an implied easement to pass over the land’s surface as reasonably necessary to extract materials (e.g. wood, coal).

Question 8

Easement by Necessity

Answer 8

Easement arise if access to or from property is impossible without easement

Creation
♣ Usually arises when landowner sells portion of her property and the resulting division deprives one lot owner of access to a public road or utility.
• The owner of the servient estate can choose a reasonable location for the easement
o Termination
♣ Expires automatically when necessity ends

Requirements:
♣ 1. Portion of land is sold
♣ 2. One parcel becomes landlocked
♣ 3. No reasonable way to enter

Question 9

Negative Easement

Answer 9

Entitles holder to prevent servient landowner from engaging in otherwise permissible actions on his own land

Four categories of acts may be prevented:
♣ 1. Light
♣ 2. Air
♣ 3. Support
♣ 4. Stream of water from an artificial flow

Creation:
Can only be created by express grant (writing signed by grantor)

NOTE: Restrictive covenants are utilized more frequently than negative easements to prevent landowner from engaging in certain activities on their land.

Question 10

Easements may be terminated in any one of the following ways:

Answer 10

♣ 1. Estoppel: where servient owners reasonably relies on an easement holder’s conduct or representations indicating an intent to abandon the easement; non-use is sufficient.

♣ 2. Necessity Ends: easement by necessity expire when the need that created them ends

♣ 3. Destruction of Servient Tenement: unless destruction results from willful conduct of the servient owner

♣ 4. Release: easement holder can terminate the easement by giving a deed of release to the servient tenement owner

♣ 5. Abandonment

♣ 6. Merger: easement terminates automatically if one person acquires title of both th easement and the servient land (re-dividing the merged title will not revive easement)

♣ 7. Prescription: servient owner may extinguish an easement by interfering with it using elements of adverse possession
8. Expiration: if easement was established for a set term or to expire upon stated conditions, expiration of the term or occurrence of the stated conditions will terminate easement

Question 11

License:

Answer 11

♣ A right to use another person’s (licensor’s) land, which is revocable at the licensor’s will
• Not an interest in land; license is a privilege, not an interest in land (distinguish from affirmative easement)
• Revocable: licensor may revoke the privilege at any time, unless estoppel applies
• Inalienable: may not be assigned or transferred. Any attempt to do so revokes the license
• No SoF requirement: a license may be oral or written; they can result from easements that are invalid under the statute of frauds
E.g. an oral grant of a permanent easement between neighbors may result in a license because SoF not satisfied

Question 12

Profits:

Answer 12

♣ A non-possessory property interest entitling its holder to enter a servient estate to remove resources (e.g. minerals, fish)
• All rules governing easements apply to profits (e.g. creation, transferability and termination)
• Extinguishment: A profit may be extinguished through misuse or overuse of resources on the servient estate

Question 13

Covenants:

Answer 13

o A promise to do or refrain from doing something related to land
♣ A contractual limitation or promise regarding land
♣ Note: covenants are not property interests.

Question 14

Covenants: Real Covenant

Answer 14

o Real Covenant: a covenant concerning real property
♣ Runs with the land at law: subsequent owners may be burdened by the covenant or may enforce it
• Different requirements apply for burdens and benefits running with the land
♣ Affirmative covenant: a promise to do something related to land
Restrictive covenant: a promise to refrain from doing something related to land

Question 15

Covenants: Termination

Answer 15

♣ Can occur by:
• 1. Written release
• 2. Merger of benefited and burdened estates or
• 3. Condemnation of burdened property

Question 16

Covenants vs. Equitable Servitudes

Answer 16

Covenants vs. Equitable Servitudes – difference is the remedy
♣ Covenant: money damages
♣ Equitable Servitude: injunction

Question 17

Requirements for Burdens of Covenant to Run with Land

Answer 17

o A successor in interest to the burdened estate will be bound by a covenant if the requirements bellow are satisfied.

o Requirements (WITHN)
♣ 1. Writing – original covenant was in writing
♣ 2. Intent – parties intended to bind successors in interest
• look to language of the covenant; courts are liberal in construing requisite intent
♣ 3. Touches and concerns the land – covenant must affect parties legal relations as landowners (a very low standard)
• Homeowner association fees satisfy this requirement
♣ 4. Horizontal and vertical privity – must exist between interested parties
• Horizontal privity: relationship between the covenanting parties (e.g. grantor/grantee, landlord/tenant, mortgagor/mortgagee)
• Vertical privity: relationship between covenanting parties and their successors in interest (e.g. contract, devise, descent)
♣ 5. Notice – successor in interest had notice of the covenant when she took her interest.

Question 18

Requirement for Benefits of Covenant to Run With Land

Answer 18

o A successor in interest to the benefiting estate may enforce the covenant if the requiements below are satisfied
o Requirements:
♣ 1. Writing
• original covenant was in writing
♣ 2. Intent
• original parties intended benefit to run with land
• Look to language of the covenant; courts are liberal in construing requisite intent
♣ 3. Touches and concerns the land
• The covenant must affect parties legal relations as landowners (a very low standard)
♣ 4. Vertical Privity: successors in interest are in vertical privity with the original covenanting parties (e.g. through contract, devise or descent)
• Horizontal privity is not required for majority of states

Question 19

Equitable Servitudes:

Answer 19

♣ Equitable servitudes are covenants enforced in equity against successors through injunctive relief (e.g. injunction is the remedy)
• Privity is not required to bind successors
• E.g. a covenant that will be enforced against successors of the burdened land who have notice of the covenant

Question 20

Equitable Servitudes: Creation

Answer 20

• 1. Writing: written promise
• 2. Intent: original parties must intend to bind successors
• 3. Touches and concerns the land
• 4. Notice: successors of the burdened land had notice
o notice not required for benefit to run

Question 21

Equitable Servitudes: Defenses to Enforcement

Answer 21

♣ A court will not enforce an equitable servitude if any of the following conditions exist:
• 1. Pervasive changes in the neighborhood
• 2. Estoppel
• 3. Acquiescence
• 4. Unclean hands
• 5. Laches

o Reciprocal negative servitudes: may be implied from a common scheme for development of a residential subdivision

Question 22

Reciprocal Negative Servitudes

Answer 22

o Lot owners in residential subdivisions may enforce restrictions on the use of property against other subdivision lot owners
♣ May be implied from a common development scheme of a residential subdivision

Question 23

Reciprocal Negative Servitudes: Created through implication if

Answer 23

o Created through implication if:
♣ 1. General/common scheme – when sales began, the developer had a general scheme for all parcels of the subdivision, including the subject lot
• Common scheme may be evidenced through:
o 1. Recorded plant
o 2. General pattern of restrictions, and/or
o 3. Oral representations to early buyers
♣ 2. Notice – owner of the subject lot had notice of the covenants in the deed of other subdivision lots
• Notice may be one of 3 types:
o Actual: literal knowledge of covenants
o Inquiry: character of the neighborhood indicates a common restriction or
o Record: chain of title for the owner’s lot includes a prior deed containing a covenant.