CH. 12 (SHAF MEMO) Flashcards
IMPLIED RECIPROCAL NEGATIVE EASEMENTS:
Can AAA prevail against Zev and prevent him from putting up his “End World Hunger” sign when some people in the development had a restriction in their deeds against all signs and Zev, a later purchaser, did not?
An implied reciprocal negative easement arises when a common grantor conveys a parcel with restrictions and, by so conveying, the remaining lots retained by the common grantor are similarly and reciprocally bound. An implied reciprocal negative easement, where recognized, may be either a new type of negative easement, or merely a theory to sustain several elements of a running covenant.
When Opel conveyed the first five lots with the express restriction, then all of the remaining lots became bound too because it would make no sense for Opel to have only the first five lots bound in this community but not the others. Moreover, while the ancient common law recognized only four negative easements (light, air, water flow from an artificial stream, and support), that is not a good reason for not recognizing a new one. Law evolves and we should be prepared to recognize new negative easements as needs develop. Evolution, after all, is an integral part of our common law heritage. Further, because easements “run,” the restriction runs to all subsequent purchasers taking from Opel, such as Zev, so long as Zev had notice (see below).
Nonetheless, to impute this restriction to Zev is to essentially vitiate the Statute of Frauds, something that has taken centuries to develop and should not be taken lightly. In this regard, if Opel had wanted Zev to be bound, she should have simply put it in the deed. Further, if this implied reciprocal negative easement is a new type of negative easement, that is something that should not be adopted in a cavalier manner: the courts of England were hesitant about creating new types of negative easements and, considering that our legal system is based on the English common law, we should be wary about creating new interests that were foreign to our common law ancestors.
