Covenants, Easements, Other Rights in Land

Question 1

Covenants vs. Equitable Servitudes

Answer 1

Covenant = contract
Breach = damages
Need privity

Equitable servitude = equity
Breach = equitable relief/injunction
Do not need privity

Question 2

Covenant Requirements

Answer 2

1) Privity (Horizontal and Vertical)
2) Intent in Writing to Run w/ Land and Bind Successors
3) Notice
4) Touch and Concern the Land

Question 3

Covenant

Answer 3

Promissory agreement (positive or negative) that binds owners in land
-Note–don’t need covenant if original parties still on land/no successors in interest–that’s just a contract

Question 4

Easement

Answer 4

Interest in land (positive or negative) usually connected w/ ownership of another piece of land

Question 5

Equitable servitudes

Answer 5

Enforced in equity–convenants/agreements that are not full covenants, but may be enforced in equity

Question 6

Run with Land

Answer 6

Successors in interest either benefitted or burdened

Question 7

Horizontal Privity

Answer 7

Relationship between original covenantor and original covenantee
Need
1) Privity of contract AND
2) Connection with land = MUST BE:
Grantor/Grantee and/or Common Grantor OR
Landlord/Tenant OR
Mortgagor/Mortgagee

CANNOT have if just neighbors–no connection w/ land

Question 8

Vertical Privity

Answer 8

Relationship between original party to covenant and successor in interest
Need
1) Transfer of entire estate (ex.–sell all owns vs. leases)

Question 9

Intent re: Covenants, Equitable Servitudes

Answer 9

Must have writing (SoF applies to both ) that shows intent to
1) have covenant/servitude run w/ land AND
2) have covenant/servitude bind successors

Question 10

Covenant Notice

Answer 10

Current owner of servient estate must take with notice of covenant

Actual OR constructive OR inquiry notice

Question 11

Touch and Concern

Answer 11

Requirement for covenants and equitable servitudes

Must have dominant AND servient estates

Question 12

Dominant Estate

Answer 12

Estate that is benefitted–increased use and enjoyment

Ex.–two parcels, easement to cross land–person who can cross has the dominant estate

Question 13

Servient Estate

Answer 13

Estate that is burdened–reduced use and enjoyment

Ex. two parcels, easement to cross land–person who has to let other cross land has servient estate

Question 14

Types of Notice

Answer 14

Actual: actually know

Constructive: if recorded = constructive notice

Inquiry: have enough info that reasonable person would inquire further (ex. see road crossing land, no houses in area have more than one story)

Question 15

Constructive Notice

Answer 15

If recorded = constructive notice

Question 16

Inquiry Notice

Answer 16

Was there enough info available that reasonable person would ask further?
Ex.–every house is same color–r. person would ask if there’s some reason for that

Question 17

Affirmative Covenant

Answer 17

Covenant requiring someone to do something
CANNOT run w/ land–no vertical privity, doesn’t touch and concern (in practice–line b/tween affirmative and negative blurry–but if promise to mow lawn, won’t run w/ land)

Question 18

Negative Covenant

Answer 18

Covenant forbidding servient estate from doing something
Can run w/ land (vs. affirmative–although line blurry)

Question 19

Requirement for Equitable Servitude

Answer 19

1) Touch and Concern land–burden runs w/ servient, benefit runs w/ dominant
AND
2) Intent in writing to run w/ land and bind successors (writing exception: implied reciprocal)
AND
3) Notice

Question 20

Implied Reciprocal Servitude

Answer 20

Two ways to read:
1) If one owner sells lots with restrictions that benefit owner then restriction becomes mutual = owner also bound
2) IF common scheme/plan for development AND plan evident at time of conveyance (ex. can look around and see) = servitude imposed on all plots EVEN IF not expressly in all

DOES NOT require writing (SoF N/A, implied)
ONLY if negative easement
Key: common scheme or plan

Question 21

Common Scheme or Plan

Answer 21

Factors to look at
-Large % of lots expressly burdened
-Oral representations to buyers
-Statements in ads to buyers
-Recorded plat maps/other declarations

Often–filed declaration containing restrictions (“CC&Rs–covenants, conditions, and restrictions)

Question 22

Enforcement of Covenants

Answer 22

Can be enforced by
1) Original grantor OR
2) Any purchaser affected by common scheme OR
3) Condo or subdivision/property assoc. for land conveyed to it

Question 23

Termination of Covenants

Answer 23

1) Written Release
2) Merger of dominant and servient estates
3) Abandonment (ex. covenants haven’t been enforced)
4) Estoppel (ex. relied on waiver)
5) Changed circumstances such that reason behind the restriction no longer valid (ex. no one enforcing, for x building + building destroyed–have to reneg.)
Cure = damages

Question 24

Termination of Equitable Servitudes

Answer 24

Same as covenants:
) Written Release
2) Merger of dominant and servient estates
3) Abandonment (ex. covenants haven’t been enforced)
4) Estoppel (ex. relied on waiver)
5) Changed circumstances such that reason behind the restriction no longer valid (ex. no one enforcing, for x building + building destroyed–have to reneg.)
Cure = injuction/equitable relief

Question 25

Easement Appurtenant

Answer 25

Benefits a parcel of land (ex. land landlocked, can drive across neighbor’s)

Has both dominant and servient estates

Question 26

Easement in Gross

Answer 26

Benefits a person/entity (ex. right to run power lines)

Only has servient estate

Question 27

Types of Easements

Answer 27

1) Express (SoF)

2) By Implication (Prior Use, Necessity, Plat)

3) By Prescription (adverse poss.)

Question 28

Express Easement

Answer 28

Easement given in writing

Must satisfy SoF

Question 29

Easement Implied by Prior Use

Answer 29

ONLY IF
1) Severance of title to land held in common ownership (A and B were same parcel at one pt
AND
2) Use giving rise to easement existed at time of severance (quasi-easement use)
AND
3) Use apparent and could be easily discovered w/ reasonable inspection
AND
4) At time of severance use necessary for proper + reasonable enjoyment of prop.

Question 30

Easement by Necessity

Answer 30

ONLY IF
1) Common ownership of dominant + servient estates, then severance
AND
2) Strict necessity for easement at time of severance (almost always = landlocked)

Only lasts till necessity ends

Question 31

Easement by Platt

Answer 31

Buyer in platted subdivision = implied easement to use streets, alleys, and parks in subdivision

Question 32

Scope of Easements

Answer 32

Express + stated = only that

Not stated = to extent reasonably necessary (cannot “surcharge the easement,” go beyond reasonable)

Includes r. necessary maintenance (even if interferes w/ servient owner’s use/enjoyment)

If violation, easement still exists–but can get damages, injunction

Question 33

Ways to Terminate Easement

Answer 33

1) Destruction of Servient Estate
(exception: owner caused)
2) Merger of Title
3) Written Release (SoF)
4) Abandonment (proof of intent + affirmative act)
5) Estoppel
6) Severance (attempt to sever easement from dom. estate)
7) Prescription (servient estate interferes w/ use for x period)
8) Sale to Bona Fide Purchaser (for value AND no notice (including implied))
9) (If Necessity) End of Necessity

Question 34

Easements + Abandonment

Answer 34

Need
1) Intent to abandon
AND
2) Affirmative act in furtherance o/ intent

Question 35

Easements + Estoppel

Answer 35

Owner of servient estate foreseeably and detrimentally relies on easement holders actions/abandonment

Question 36

Easements + Severance

Answer 36

Dominant estate CANNOT transfer/sever easement

Try to sever = terminates (arises w/ appurtenant only, b/cause in gross = personal, no dom. estate)

Question 37

Termination by Prescription

Answer 37

Easement/Servitude ends if hostile contrary non-use–if holder of servient estate interferes with/prevents use for statutory period
Same idea as a. possession–SoL kicks in, bars

Question 38

Termination by Sale to Bona Fide Purchaser

Answer 38

Easement/Servitude ends if bonafide purchaser takes
1) For value AND
2 Without notice (actual OR constructive OR implied)

Question 39

Profit

Answer 39

Nonpossessory interest in land–right to go onto land and take something off it

(Ex. right to cut logs, gather sand, fish, etc.)

Question 40

Profit v. Easement

Answer 40

Easement = Nontransferable (terminates easement)
Profit = Transferable unless otherwise stated

Question 41

Creation of Profit

Answer 41

1) Express (SoF)
OR
2) By Prescription (A. poss.)

NOT by implication (vs. easements)

Question 42

Easement by Prescription

Answer 42

Adverse Possession: Actual, open, hostile, notorious, exclusive for statutory period

Get usafructuary rt to use NOT ownership–only creates easement

Also applies re: profits

Question 43

Profit v. License

Answer 43

Profit = terminate same way as easement–not unilaterally
License–(usually ) freely revocable, does not require consideration

Profit = SoF
License = can be oral– SoF N/A

Profit = transferable
License = (usually) not transferable

Question 44

License

Answer 44

Privilege–usually to do something on property (ex. ticket to enter, ability to pick crop, ability to use as parking lot)

Under CL–not really interest in land–personal right
Can also read as smallest of all personal rights

Can be oral–SoF N/A

NOT transferable unless proof otherwise

DOES NOT REQUIRE consideration

Question 45

Irrevocable Licenses

Answer 45

1) License Coupled w/ Interest
2) Executed License

Question 46

Termination of License

Answer 46

Freely revocable OR
1) Death of licensee OR
2) Servient Estate (estate giving right) conveyed

Question 47

License Coupled with Interest

Answer 47

Type of irrevocable license

1) Buy personal property located on another’s land AND
2) Get permission to enter land to retrieve (ex. buy apples, told can pick on own–can’t revoke b/cause apples = coupled interest)

Question 48

Executed License

Answer 48

Type of irrevocable license

Applies if licensee expends money or labor in reliance on license

Irrevocable till person gets value of of expenditure