Easements and Real Covenants Flashcards
Easement Definition
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.
Affirmative Easment
Holder has the right to do something on someone else’s property.
Negative Easement
Holder has the right to prevent someone from doing something on their land.
Easement Appurtenant
The easement is tied to the use of the land.
Easement in Gross
The easement benefits the holder personally.
[Traditionally these easements were not transferable, however courts are moving away from this analysis.]
The Two Methods for Creating Easements
- Express Easement
- Implied Easement
Express Easement Requirements and Features
- Express Easements must be satisfy the Statute of Frauds (written)
- May be created by granted the easement to someone or reservation. [Grantor gives lands but reserves the right to keep easement through it]
- Express easements are subject to recording statutes.
- A Negative Easement MUST BE AN Express Easement
Implied Easement Requirements and Features
- Transferable.
- Not subject to Statute of Frauds
- Arise out of factual circumstances
- Not subject to recording statutes unless subsequent purchaser had notice of the easement.
- Four Kinds of Implied Easements
- Easement by Necessity
- Easement by Implication
- Easement by Prescription
- Easement by Estoppel
Implied Easement by Necessity
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.
Implied Easement of Implication
An easement by implication is created by an existing use on a property.
- 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.
- Then, after severance of property, the original owner continues to use the easement in an apparent manner.
- Need for the easement must be reasonably necessary. [Not the strict standard applied to Necessity]
implied Easement by Prescription
Similar to adverse possession, but for an easement.
Requires all of the factors for adverse possession except exclusivity.
Implied Easement by Estoppel
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
Scope of Express Easement
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.
Scope of Implied Easements
The scope is determined by the nature of the prior use or necessity (and then categorized into one of the four types)
Duty to Maintain Easement
The owner of the easement has duty to maintain (Unless contracted otherwise)
Ending an Easeament
- Releasing the easement (Must be in writing since it is an interest in land)
- Merger of properties
- Abandonment [Owner of easement acts in an Affirmative way to show clear intent to relinquish right.] [THIS MUST BE MORE THAN NON-USE]
- Prescription: Easement holder fails to protect against a trespasser for a statutory period (so like adverse possession)
- Sale of Easement
- Estoppel
- End of Necessity (For Implied Easements of Necessity)
License and Easement
A license to enter land is not an easement. Licenses can be revocable.
Define a Real Covenant
An agreement that binds a successors. This agreement is said to “run with the land.”
The Five Elements of a Real Covenant
- In Writing
- Shows Intent for it to Run
- Touch and Concern (The Property)
- Notice
- Privity
Remedy for Breach of a Real Covenant
Damages
Define and Equitable Servitude
Essentially a Real Covenant except: (1) Privity is not required and (2) the remedy is Injunctive Relief
Implied Reciprocal Servitude
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.
The Changed Circumstances Doctrine
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.)
Equitable Defenses to Real Covenants and Equitable Servitudes
Equitable Defenses are available (such as unclean hands, laches, etc.)
Three Types of Common Interest Communities
Owners’ Associations
Condominiums
Cooperatives
Governance of Common Interest Communities
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.
Cumulative Zoning
Traditional approach in which residential use is permitted everywhere, commercial restricted to some areas, and industrial is given the fewest areas to develop.
Mutually Exclusive Zoning
Some jurisdictions have developed an approach where only one type of of use is permitted by zone.
Elements of a Variance to Zoning
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.
Riparian Water Rights
Any property adjacent to the water source has a right to its use. Must be reasonable use of the water.
Prior Appropriation Water Rights
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.
