Covenants; Easements; Fixtures

Question 0

EASEMENT IN GROSS

Answer 0

(definition)

Question 1

EASEMENT APPURTENANT

Answer 1

An easement appurtenant is one benefiting the holder of the easement. It benefits the buyer’s land (the dominant tenement) and burdens the owner’s land (the servient tenement). Where there is an easement appurtenant, it passes with a transfer of the dominant tenement, even though it is an interest in the servient tenement. Because the easement is perpetual, it is binding on all of the owner’s subsequent transferees regardless of whether the conveyance refers to the easement, as long as the transferees have notice of it.
Easement must comply with all formalities of a deed, must be recorded in the chain of title.

Question 2

RESTRICTIVE COVENANT (COMMON DEVELOPMENT SCHEME)

Answer 2

An equitable servitude can be created by a writing complying with the Statute of Frauds concerning a promise that touches and concerns the land and indicates that the servitude exists, as long as notice is given to the future owners of the burdened land.
A court will imply a covenant - known as reciprocal negative servitude - where evidence shows that the developer had a scheme for development when sales began and the grantee in question had notice of the plan. The covenant protects the parties who purchased in reliance on the scheme.

Notice can be from actual notice, record notice, or inquiry notice.

Question 3

FIXTURES

Answer 3

First ask - is it residential or commercial?

Residential - look at the nature of the chattel; intent of tenant; how much damage to real property if chattel is removed.

Commercial - trade fixture doctrine: allows commercial tenant to remove all trade fixtures prior to termination of lease.