Covenants and Servitudes Flashcards
What is an Easement?
An easement is the right to use land for a particular purpose, but no right to possession or enjoy that land.
List the Types of Easements and How they are created.
Express – An express grant must be in writing under the Statute of Frauds, and is typically created by deed.
By Reservation – An easement by reservation arises where the grantor conveys title to land but reserves the right to continue to use the tract for a special purpose (for himself, not someone else), typically written into a deed.
By Implication – An easement may be implied if permitted use over a long period of time effectively amounts to consent. The use must be (1) apparent and continuous, and (2) it must be reasonably necessary to the enjoyment of the dominant parcel.
By Necessity – An easement by necessity arises where a landowner sells a portion of his tract and so deprives one lot of access to a public road or utility line.
By prescription – Adverse Possession (absent exclusive possession)
What is an Easement Appurtenant?
An easement appurtenant benefits the holder in physical use or enjoyment of another’s land, and automatically runs with the transfer of the land, UNLESS the servient estate is transferred to a Bona Fide Purchaser without notice.
What is an Easement in Gross?
The holder of an easement in gross acquires the right to use the servient tenement independent of another tract of land. The easement in gross attaches to the person, and does not run with the land.
How can an Easement be Terminated?
An easement can be terminated by either in writing, or with an oral statement accompanied by an action of abandonment.
A failed attempt to create an easement results in a license, which is a revocable privilege to go upon the land of another. A license may become irrevocable only if the licensee invests substantial amounts of money or labor in reliance on the license
What is required to enforce a Covenant?
A covenant is a written promise to do or not do something on the land. In order to enforce a covenant, it must benefit or burden the land.
For a burden to run with the land, to a successive purchaser, there must be:
(1) Intent: Intent may be inferred from the circumstances or in the language in the conveyance
(2) Notice: Notice may be actual, inquiry or record notice.
(3) Horizontal Privity: At the time the promisor entered the covenant with the promisee, the two must have shared some interest in the land independent of the covenant (e.g., grantor-grantee, landlord-tenant, mortgagor-mortgagee)—this concerns the original covenanting parties.
(4) Vertical Privity: A successor in interest to the covenanting party must hold the entire duration interest held by the covenantor at the time he made the covenant.
(5) Touch and Concern: The covenant must benefit or burden the use of the parcel.
For a benefit to run with the land, there must be: (1) intent, (2) vertical privity, and (3) touch and concern.
What is required to enforce an Equitable Servitude?
An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant.
For a equitable burden to run with the land, there must be: (1) intent, (2) notice, and (3) touch and concern.
For a equitable benefit to run with the land, there must be: (1) intent and (2) touch and concern.
What is required to enforce an Implied Negative Reciprocal Servitude?
Negative equitable servitudes may be implied from a common scheme for development of a residential subdivision if the developer intended all parcels to be subject (as evidenced by the recorded plat, a general pattern of restrictions, or oral representations to early buyers). To be bound by a negative equitable servitude, a grantee must have had notice of the covenants in the deeds of others in the subdivision, which may be actual, inquiry, or record notice.
