Easements and Real Covenants

Question 1

Easement Definition

Answer 1

A right held by one person to make use of another person’s land.

Servient Estate: Land burdened by the easement.
Dominant Estate: Land benefitted by the easement.

Question 2

Affirmative Easment

Answer 2

Holder has the right to do something on someone else’s property.

Question 3

Negative Easement

Answer 3

Holder has the right to prevent someone from doing something on their land.

Question 4

Easement Appurtenant

Answer 4

The easement is tied to the use of the land.

Question 5

Easement in Gross

Answer 5

The easement benefits the holder personally.

[Traditionally these easements were not transferable, however courts are moving away from this analysis.]

Question 6

The Two Methods for Creating Easements

Answer 6

1. Express Easement
2. Implied Easement

Question 7

Express Easement Requirements and Features

Answer 7

1. Express Easements must be satisfy the Statute of Frauds (written)
2. May be created by granted the easement to someone or reservation. [Grantor gives lands but reserves the right to keep easement through it]
3. Express easements are subject to recording statutes.
4. A Negative Easement MUST BE AN Express Easement

Question 8

Implied Easement Requirements and Features

Answer 8

1. Transferable.
2. Not subject to Statute of Frauds
3. Arise out of factual circumstances
4. Not subject to recording statutes unless subsequent purchaser had notice of the easement.
5. Four Kinds of Implied Easements

• Easement by Necessity
• Easement by Implication
• Easement by Prescription
• Easement by Estoppel

Question 9

Implied Easement by Necessity

Answer 9

An easement by necessity is created only when a property is virtually useless without the easement. Courts apply a strict standard to this.

• Requires that the dominant and servient estate were once owned by one person and when the properties were severed the need for the easement arose.
• Easement ends once the necessity ends.

Question 10

Implied Easement of Implication

Answer 10

An easement by implication is created by an existing use on a property.

1. Requires that an estate is owned by one person and prior to severance they used the “easement”. [Not truly an easement because they own the property at this time.
2. Then, after severance of property, the original owner continues to use the easement in an apparent manner.
3. Need for the easement must be reasonably necessary. [Not the strict standard applied to Necessity]

Question 11

implied Easement by Prescription

Answer 11

Similar to adverse possession, but for an easement.

Requires all of the factors for adverse possession except exclusivity.

Question 12

Implied Easement by Estoppel

Answer 12

Requires

• Permissive use of the land (as it relates to the easement)[A LICENSE]
• Reliance on the license to use that land [Reliance must be reasonable and in good faith]
• Permission to use the easement is withdrawn
• Which, if allowed, causes a detriment to the person who relied on the continued use of the easement

Question 13

Scope of Express Easement

Answer 13

Contained in the terms of the easement. If ambiguous terms used, then court looks to intent.

Changes in an express easement are tested under a reasonableness standard.

If an easement is not being used as intended (exceeds scope) and the change is not reasonable, then that person is a trespasser.

Question 14

Scope of Implied Easements

Answer 14

The scope is determined by the nature of the prior use or necessity (and then categorized into one of the four types)

Question 15

Duty to Maintain Easement

Answer 15

The owner of the easement has duty to maintain (Unless contracted otherwise)

Question 16

Ending an Easeament

Answer 16

1. Releasing the easement (Must be in writing since it is an interest in land)
2. Merger of properties
3. Abandonment [Owner of easement acts in an Affirmative way to show clear intent to relinquish right.] [THIS MUST BE MORE THAN NON-USE]
4. Prescription: Easement holder fails to protect against a trespasser for a statutory period (so like adverse possession)
5. Sale of Easement
6. Estoppel
7. End of Necessity (For Implied Easements of Necessity)

Question 17

License and Easement

Answer 17

A license to enter land is not an easement. Licenses can be revocable.

Question 18

Define a Real Covenant

Answer 18

An agreement that binds a successors. This agreement is said to “run with the land.”

Question 19

The Five Elements of a Real Covenant

Answer 19

• In Writing
• Shows Intent for it to Run
• Touch and Concern (The Property)
• Notice
• Privity

Question 20

Remedy for Breach of a Real Covenant

Answer 20

Damages

Question 21

Define and Equitable Servitude

Answer 21

Essentially a Real Covenant except: (1) Privity is not required and (2) the remedy is Injunctive Relief

Question 22

Implied Reciprocal Servitude

Answer 22

A type of equitable servitude that does not need to be in writing. (Usually comes up in planned communities with community standards).

To Create:

• Developer must intend to create a covenant on all plots in the subdivision
• The promise must be reciprocal (benefits and burdens each parcel of land equally)
• Must be negative (so a restriction)
• Successor must be on notice of the restriction (inquiry notice will suffice)
• Must be a common plan or scheme

Terminates in the same way as an easement.

Question 23

The Changed Circumstances Doctrine

Answer 23

Used to overcome real covenants or equitable servitudes.

Looks for a situation where the restriction does not make sense due to a drastic change in the surrounding area. Change is given more weight when it affects the community itself (as opposed to areas outside the community.)

Question 24

Equitable Defenses to Real Covenants and Equitable Servitudes

Answer 24

Equitable Defenses are available (such as unclean hands, laches, etc.)

Question 25

Three Types of Common Interest Communities

Answer 25

Owners’ Associations

Condominiums

Cooperatives

Question 26

Governance of Common Interest Communities

Answer 26

A declaration (and other governing documents) outline controlling covenants and other restrictions.

Generally, these declarations are valid so long as they are not illegal, against public policy, or are unconstitutional.

Question 27

Cumulative Zoning

Answer 27

Traditional approach in which residential use is permitted everywhere, commercial restricted to some areas, and industrial is given the fewest areas to develop.

Question 28

Mutually Exclusive Zoning

Answer 28

Some jurisdictions have developed an approach where only one type of of use is permitted by zone.

Question 29

Elements of a Variance to Zoning

Answer 29

Must show:

• Compliance with Zoning Laws would create unnecessary hardship
• The hardship arises from circumstances unique to the property
• The owner did not create the hardship
• The variance is in keeping with the overall purpose of the ordinance AND
• The variance will not cause substantial harm to the general welfare.

Question 30

Riparian Water Rights

Answer 30

Any property adjacent to the water source has a right to its use. Must be reasonable use of the water.

Question 31

Prior Appropriation Water Rights

Answer 31

First person to use the water, regardless of where their property is located, has the first right to the water.

First in time, first in right.

Water must be used in a productive manner. This is a very lenient standard.