Covenants, Easements, Other Rights in Land Flashcards
Covenants vs. Equitable Servitudes
Covenant = contract
Breach = damages
Need privity
Equitable servitude = equity
Breach = equitable relief/injunction
Do not need privity
Covenant Requirements
1) Privity (Horizontal and Vertical)
2) Intent in Writing to Run w/ Land and Bind Successors
3) Notice
4) Touch and Concern the Land
Covenant
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
Easement
Interest in land (positive or negative) usually connected w/ ownership of another piece of land
Equitable servitudes
Enforced in equity–convenants/agreements that are not full covenants, but may be enforced in equity
Run with Land
Successors in interest either benefitted or burdened
Horizontal Privity
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
Vertical Privity
Relationship between original party to covenant and successor in interest
Need
1) Transfer of entire estate (ex.–sell all owns vs. leases)
Intent re: Covenants, Equitable Servitudes
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
Covenant Notice
Current owner of servient estate must take with notice of covenant
Actual OR constructive OR inquiry notice
Touch and Concern
Requirement for covenants and equitable servitudes
Must have dominant AND servient estates
Dominant Estate
Estate that is benefitted–increased use and enjoyment
Ex.–two parcels, easement to cross land–person who can cross has the dominant estate
Servient Estate
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
Types of Notice
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)
Constructive Notice
If recorded = constructive notice
Inquiry Notice
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
Affirmative Covenant
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)
Negative Covenant
Covenant forbidding servient estate from doing something
Can run w/ land (vs. affirmative–although line blurry)
Requirement for Equitable Servitude
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
Implied Reciprocal Servitude
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
Common Scheme or Plan
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)
Enforcement of Covenants
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
Termination of Covenants
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
Termination of Equitable Servitudes
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
Easement Appurtenant
Benefits a parcel of land (ex. land landlocked, can drive across neighbor’s)
Has both dominant and servient estates
Easement in Gross
Benefits a person/entity (ex. right to run power lines)
Only has servient estate
Types of Easements
1) Express (SoF)
2) By Implication (Prior Use, Necessity, Plat)
3) By Prescription (adverse poss.)
Express Easement
Easement given in writing
Must satisfy SoF
Easement Implied by Prior Use
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.
Easement by Necessity
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
Easement by Platt
Buyer in platted subdivision = implied easement to use streets, alleys, and parks in subdivision
Scope of Easements
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
Ways to Terminate Easement
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
Easements + Abandonment
Need
1) Intent to abandon
AND
2) Affirmative act in furtherance o/ intent
Easements + Estoppel
Owner of servient estate foreseeably and detrimentally relies on easement holders actions/abandonment
Easements + Severance
Dominant estate CANNOT transfer/sever easement
Try to sever = terminates (arises w/ appurtenant only, b/cause in gross = personal, no dom. estate)
Termination by Prescription
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
Termination by Sale to Bona Fide Purchaser
Easement/Servitude ends if bonafide purchaser takes
1) For value AND
2 Without notice (actual OR constructive OR implied)
Profit
Nonpossessory interest in land–right to go onto land and take something off it
(Ex. right to cut logs, gather sand, fish, etc.)
Profit v. Easement
Easement = Nontransferable (terminates easement)
Profit = Transferable unless otherwise stated
Creation of Profit
1) Express (SoF)
OR
2) By Prescription (A. poss.)
NOT by implication (vs. easements)
Easement by Prescription
Adverse Possession: Actual, open, hostile, notorious, exclusive for statutory period
Get usafructuary rt to use NOT ownership–only creates easement
Also applies re: profits
Profit v. License
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
License
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
Irrevocable Licenses
1) License Coupled w/ Interest
2) Executed License
Termination of License
Freely revocable OR
1) Death of licensee OR
2) Servient Estate (estate giving right) conveyed
License Coupled with Interest
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)
Executed License
Type of irrevocable license
Applies if licensee expends money or labor in reliance on license
Irrevocable till person gets value of of expenditure
