BAR FLASHCARDS - P7 - Servitudes

Question 1

SERVITUDES (Forms of servitudes)

Answer 1

Affirmative easements,
negative easements (LASS),
Real covenants,
Equitable Servitudes,
Reciprocal negative servitudes (common shceme doctrine).

Question 2

Easement.
What is it?
Duration of easement?

Answer 2

Grant of nonpossessory property interest entitling holder to use of another’s land for a special purpose.
An easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.

An easement holder has the right to use another’s tract of land for a specified purpose, but has no right to possess or enjoy that land.

An easement is presumed to be of perpetual duration unless the grant specifically limits the interest.
Common examples of easements include:
• The right to lay utility lines on another’s land
• The right of way over another’s land
• The right to tap into a neighbor’s drain

Question 3

Easement: TYPES -

Answer 3

Easements Are Affirmative or Negative
Affirmative: Right to go on to and make an affirmative use of another’s land (the servient tenement). Most easements are affirmative. An affirmative easement is the right to go onto and do something on servient land (meaning, the land that is imposed upon by the easement).

Negative: Right to prevent the servient landowner from doing something (Light, air, support, stream water from artificial flow).
The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
Negative easements are generally recognized in only four categories: L A S S :
• Light
• Air
• Support: Refrain from excavating to erode your underground.
• Stream water from an artificial flow: compel neighbor to refrain from interfering with your access to that.
A minority of states also allow a negative easement for scenic view.

Creation of a Negative Easement: Negative easements can only be created expressly, by a writing signed by the grantor. There is no natural or automatic right to a negative easement.

Question 4

Creation of a Negative Easement:

Answer 4

Negative easements can only be created expressly, by a writing signed by the grantor.
There is NO natural or automatic right to a negative easement.

Question 5

Negative easements can only be created ____, by a ___.

Answer 5

Negative easements can only be created expressly, by a writing signed by the grantor.

Question 6

Easement: TYPES - Appurtenant or in Gross

Answer 6

A. Easement Appurtenant: Benefits holder in use/enjoyment of own land.
An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land.
How will you know when you’ve got an easement appurtenant? Two parcels of land must be involved:
• a dominant tenement, which derives the benefit
• a servient tenement, which bears the burden.

B. Easement in Gross: An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. Here, servient land is burdened. However, there is no benefited or dominant tenement (because the easement benefits the holder rather than another parcel). Some common examples of an easement in gross:
• The right to place a billboard on another’s lot
• The right to swim in another’s pond
• The utility company’s right to lay power lines on another’s lot
What do those examples have in common?

Question 7

Easement Appurtenant

How will you know when you’ve got an easement appurtenant?

Answer 7

A. Easement Appurtenant: Benefits holder in use/enjoyment of own land.
An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his own land.
How will you know when you’ve got an easement appurtenant? Two parcels of land must be involved:
• a dominant tenement, which derives the benefit
• a servient tenement, which bears the burden.

Question 8

How will you know when you’ve got an easement appurtenant?

Answer 8

How will you know when you’ve got an easement appurtenant? Two parcels of land must be involved:
• a dominant tenement, which derives the benefit
• a servient tenement, which bears the burden.

Question 9

Easement in Gross

Answer 9

B. Easement in Gross:
- Holder has personal/commercial advantage UNRELATED to use/enjoyment of land.
- Servient land is burdened,
- No benefited/dominant tenement.
An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. Here, servient land is burdened. However, there is no benefited or dominant tenement (because the easement benefits the holder rather than another parcel).
Only ONE parcel involved!
Some common examples of an easement in gross:
• The right to place a billboard on another’s lot
• The right to swim in another’s pond
• The utility company’s right to lay power lines on another’s lot.
What do those examples have in common? Only one parcel involved. Servient land burdened, NO dominant parcel.

Question 10

Easement TRANSFERABILITY - Easement Appurtenant

Answer 10

dominant tenement: The appurtenant easement passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance.

servient estate: The burden of the easement appurtenant also passes automatically with the servient estate, UNLESS the new owner is a bona fide purchaser without notice of the easement.

Question 11

the easement appurtenant passes ____ with the dominant tenement.

Can the benefit of an easement appurtenant be conveyed?

Answer 11

the easement appurtenant passes automatically with the dominant tenement (the benefited land). Don’t be fooled by questions that make
you think it must be specifically mentioned in the deed. On the flip side, remember that the benefit of an easement appurtenant cannot be conveyed apart from the dominant tenement.
The only exception to that rule is a conveyance of the easement to the owner of the servi- ent tenement to extinguish the easement).

Question 12

Easement TRANSFERABILITY - Easement in Gross

Answer 12

An easement in gross is not transferable unless it is for commercial purposes.

Question 13

An easement in gross is not transferable unless it is for…

Answer 13

An easement in gross is not transferable unless it is for commercial purposes.

Question 14

Easement: CREATION

Answer 14

The basic methods of creating an easement can be remembered by P I N G:
• Prescription
• Implication
• Necessity
• Grant

PINE

Question 15

PING

Answer 15

The basic methods of creating an easement can be remembered by P I N G:
• Prescription
• Implication
• Necessity
• Grant

Question 16

Easement CREATION type - Prescription

Answer 16

An easement may be acquired by analogy to adverse possession. For the elements to acquire a prescriptive easement, remember C O A H:
C: Continuous and uninterrupted use for the given statute’s period
O: Open and notorious use (that is, it’s discoverable upon inspection)
A: Actual use that need not be exclusive
H: Hostile use (meaning, use without the servient owner’s consent)
Note: Permission defeats the acquisition of an easement by prescrip- tion. An easement by prescription requires that the use be hostile.
Generally, prescriptive easements cannot be acquired in public land.

Question 17

C O A H:

Answer 17

Continues and uninterrupted use
Open and notorious (discoverable upon inspection)
Actual use (but not exclusive necessarily)
Hostile use (without servient owner’s consent)

Question 18

Easement CREATION type - Implication

Answer 18

An easement by implication is created by operation of law rather than by written instrument. It is an exception to the Statute of Frauds.

Three types of implied easements:
(1) an intended easement based on a use that existed when the dominant and servient estates were severed,
(2) an easement implied from a recorded subdivision plat or profit à prendre, and
(3) an easement by necessity.

1. Preexiting use/Quasi-easement: an intended easement based on a use that existed when the dominant and servient estates were severed,
MUST HAVE:
* Prior to the time the tract is divided, a use exists on the servient part that is reasonably necessary for the enjoyment of the dominant estate,
* the parties intended the use to continue after the division of the property,
* the previous (prior to division) use on the servient part was apparent and continuous at the time the tract is divided.
–NOTE: “Apparent” means that a grantee could discover the existence of the use upon reasonable inspection.
– This is an Implied grant or implied reservation.

2. Easement Implied Without Any Existing Use: In two limited situations, easements may be implied without preexisting use:
a. Subdivision Plat: When lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots.
b. Profit à Prendre: The holder of a profit à prendre has an implied easement to pass over the surface of the servient land and to use it as reasonably necessary to extract from the servient property its minerals or some product of the servient property (such as timber, fish, or game), as specified by the terms of the profit.

(3) an easement by necessity. NEXT CARD!

Question 19

Easement CREATION type- Necessity

Answer 19

An easement by necessity (another form of easement by implication) will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land (or deprives one lot of access to a public road or utility line)
- a right-of-way by absolute necessity is created by implied grant or reservation over the lot with access to the public road or utility line.
- The owner of the servient parcel has the right to locate the easement. CHOICE!
- An easement by necessity terminates when the necessity ceases.

Question 20

Easement CREATION type- Grant

Answer 20

Signed writing (Unless outside Statute of Frauds).

Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state’s Statute of Frauds.
So, most commonly, this means that easements to endure for greater than one year must be in writing to be enforceable.
That writing must comply with all the formal requisites of a deed (see12.1, infra).
What is the writing that evidences the easement called?

Question 21

Easement: Additional creation Method–Express Reservation

Answer 21

An easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose.

Question 22

FACT PATTERN: a grantor reserves an easement for someone else…
(a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose to SOMEONE ELSE)

Answer 22

Under the majority view, an easement can be reserved only for the grantor.
An attempt to reserve an easement for anyone else is void.

Question 23

SCOPE of Easement

Answer 23

The scope of an easement is determined by the terms of the grant or the conditions that created it.

If an easement is created but not specifically located on the servient tenement, an easement of sufficient width, height, and direction for the intended use will be implied.

The owner of the servient tenement may select the location of the easement so long as their selection is reasonable.

If there are no specific limitations in the grant, courts assume that an easement was intended to meet both present and future needs of the dominant tenement (so, for example, an easement may widen to accommodate new, wider cars).

If, however, the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.

Question 24

Unilateral expansion of easement.

Answer 24

no unilateral expansion

Question 25

overuse or misuse of an easement

Answer 25

overuse or misuse of an easement: such use does not terminate the easement.
The appropriate remedy for the servient owner is an injunction against the misuse.

Question 26

Use of Servient Estate—Repairs

Answer 26

The servient owner generally may use her land in any way she wishes so long as her conduct does not interfere with the easement.
The easement holder has the duty to make repairs to the easement if she is the sole user;
BUT if both the easement holder and the servient owner are users, the court will apportion the repair costs.

Question 27

TERMINATION of EASEMENT

Answer 27

There are eight ways to terminate an easement. Remember END CRAMP:
* Estoppel: Servient owner materially changes positions in reliance.
* Necessity
* Destruction
* Condemnation
* Release
* Abandonment
* Merger
* Prescription

In addition, an easement may be terminated under its stated conditions, meaning the original easement grant may specify when or under what conditions the easement will terminate.

Question 28

END CRAMP - terminating the easement

Answer 28

Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription

Question 29

Termination of easement: Estoppel

Answer 29

Estoppel: Servient owner materially changes positions in reliance on position that easement will not be enforced, easement ends by estoppel.
An oral expression of an intent to abandon an easement won’t terminate an easement unless it’s also committed to writing (a release) or accompanied by action (abandonment).
But if the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations (such as that the easement will no longer be enforced), the easement terminates through estoppel.

“A tells B that A will no longer be using her right of way across B’s parcel. aB relies on it. A is estopped from enforcing easement”

Question 30

Termination of easement: Necessity

Answer 30

When need ends UNLESS writing.

Easements created by necessity expire as soon as the necessity ends, unless the easement was reduced to an express grant.

Question 31

Termination of easement: Destruction

Answer 31

Destruction of servient land.
Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement.

Question 32

Termination of easement: Condemnation

Answer 32

Condemnation of servient land.
Condemnation of the servient estate by governmental eminent domain power will terminate the easement. Courts are split as to whether easement holders are entitled to compensation.

Question 33

Termination of easement: Release

Answer 33

Release by holder to servient owner.
A release given by the easement holder to the servient land owner will terminate the easement.
(Note that this applies even to an easement in gross, which is otherwise inalienable.) Does the release have to be in writing? YES.

the release of an easement interest must satisfy the Statute of Frauds. However, a release is only one way to terminate an easement. A release from the owner of the easement interest to the owner of the servient tenement is effectively a conveyance and must satisfy the formalities required to create an easement.

Question 34

Termination of easement: Abandonment

Answer 34

Abandonment (physical action)
What must an easement holder show to terminate an easement by abandonment? They must show by physical action (for example, building a structure that blocks access to easement on adjoining lot) an intent to never use the easement again.

By contrast, mere non-use, or mere words (such as expressing a wish to abandon), are insufficient to terminate by abandonment (though oral expressions combined with a long period of nonuse may be sufficient).

a long period of nonuse is sufficient to terminate an easement if it is accompanied by other evidence of intent to abandon the easement (e.g., the easement holder erects a permanent structure blocking off the easement). However, a long period of nonuse on its own, even if it continues for the statutory period, is insufficient to constitute abandonment.

easement may be abandoned if the holder manifests an intent never to use the easement again, evidenced by either physical acts or oral expressions of a desire to abandon accompanied by a long period of nonuse.

Question 35

Termination of easement: Merger (Unity of Ownership)

Answer 35

Merger (easement & servient land held by same person).

An easement is extinguished when title to the easement and title to the servient land become vested in the same person (because a person doesn’t need an easement over their own land).
So, if the same person acquires ownership of both the easement and the servient estate, those estates merge and the easement is destroyed.
Thereafter, if title is separated again, the easement will NOT return. The easement is not automatically reinstated. To create it, A would have to start from scratch.

BUT, for there to be a merger which will extinguish an easement, the duration of the servient estate must be equal to or longer than the duration of the dominant estate (and therefore the easement)

Question 36

Termination of easement: Prescription

Answer 36

Prescription by servient owner.
A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.
COAH:
Continuious interference
Open and notorious
Actual
Hostile to the easement holder

An easement MAY be terminated by prescription. However, this is not accomplished through the easement holder’s nonuse. Rather, one must interfere with the easement through long continued possession and enjoyment of the servient estate in a way that would indicate to the public that no easement right existed.

Question 37

PARTY WALLS AND COMMON DRIVEWAYS

Answer 37

Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon their land.
Courts will also imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it.

Question 38

PARTY WALLS AND COMMON DRIVEWAYS - Creation

Answer 38

A written agreement is required by the Statute of Frauds for the express creation of a party wall or common driveway agreement, but an “irrevocable license” can arise from detrimental reliance on a parol agreement. Party walls and common driveways can also result from implication or prescription.

Question 39

PARTY WALLS AND COMMON DRIVEWAYS - Running of covenants

Answer 39

If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of those promises (which are deemed covenants (see Module 9)) run to the successive owners of each parcel.