Easements and Servitudes

Question 1

Servitudes

Answer 1

• includes easements and covenants that run with the land (when you sell your interest to someone else, these servitudes continue)
• individuated, micro-adjustments of uses at individual level

Question 2

Why is the law generally hostile to servitudes?

Answer 2

• doesn’t like restrictions on alienability
• prefers standardization
• don’t want people to be surprised by easements

Question 3

Dominant Tenement

Answer 3

• the land/interest whose owner/holder is benefited by the easement

Question 4

Servient Tenement

Answer 4

• the land/interest whose owner/holder is burdened by the easement

Question 5

Appurtenant Easement

Answer 5

• benefits a dominant tenement owner qua owner - when the dominant tenement is sold, it automatically runs w/ the tenement

Question 6

In Gross Easement

Answer 6

• benefits a person regardless of ownership (benefit not linked to ownership of any particular land, but rather owned by some person or entity - person gets it regardless of their property)

Question 7

Baseball Publishing v. Bruton

Answer 7

• deals with the building and the wall used for advertisement - pl and def signed agreement entitled a “lease” providing that in return for $25, pl would have right to use def’s wall for a billboard for a year
• court characterizes this relationship as an easement in gross (not a license b/c not revocable, + not a lease b/c the owner still retains the wall for any other purpose)
• says language about “exclusive right and privilege to maintain” a sign in the agreement suggests an easement in gross (although an unusual easement - not normally temporary)

Question 8

Easements vs. Licenses

Answer 8

• licenses generally revocable, + they create no rights against third parties (if some third-party interferes w/ your license, you don’t have right to sue)

Question 9

Distinctive Characteristics of Easements

Answer 9

• typically irrevocable (either for a designated period of time or in perpetuity)
• can purchase an easement, but more often granted gratuitously or as exchange of property rights
• don’t usually depend on personal identity of grantor or grantee - attach to ownership of land
• usually regarded as rights in rem (all the world is subject to duty not to interfere w/ the easement)

Question 10

Ways to Create Easements

Answer 10

• easement in writing (by deed) - this is the correct way, all other methods created to resolve tricky scenarios
• easement by necessity
• easement by prescription
• easement by implication
• easement by estoppel (equitable estoppel)

Question 11

Easement by Written Grant

Answer 11

• Statute of Frauds applies
• writing would need to include all the elements required to make a valid transfer of real property by deed from one person to another
• should be recorded, to make sure not wiped out by GFPV, + should grant directly to whatever entity is benefitting from the easement

Question 12

Easement by Implication - Requirements

Answer 12

• severance of title of land held by one owner
• an existing use, which was visible + continuous at time of severance
• reasonable necessity for continuation of the use after severance

Question 13

Easement by Implication - Underlying Concept

Answer 13

• idea is that parties must have intended to create an easement permitting continuation of the use but failed to reflect the intent in a written instrument

Question 14

Easement by Necessity

Answer 14

• when owner subdivides property so as to leave it landlocked

Question 15

Easement by Necessity - Requirements

Answer 15

• severance of title to land held by one owner

- strict necessity at the time of severance

Question 16

Easement by Prescription

Answer 16

• analogue of adverse possession
• occurs if the adverse user engages in a particular use of the property for the required amount of time (not adverse possession fully b/c not acting like a full owner)

Question 17

Easement by Prescription - Requirements

Answer 17

• use must be open, notorious, continuous, exclusive, + under a claim of right for the period of the statute of limitations
• for continuous + exclusive elements, its evaluated in terms of what a normal holder of an easement would do

Question 18

Equitable Estoppel

Answer 18

• technically doesn’t create a property right - just prevents servient owner from revoking the license (b/c of this, q’s arise as to whether transferrable or descendible)

Question 19

Equitable Estoppel - Requirements

Answer 19

• the giving of an express license to use the property
• the reasonable expenditure of significant money or labor by the licensee in reliance of this license
• circumstances indicating that revocation of the license would be unjust

Question 20

Affirmative Easements vs. Negative Easements - Methods of Creation

Answer 20

• the methods other than written grant only work for affirmative easements - for negative easements, notice would be much more difficult

Question 21

Impeaching Own Grant and Easements of Necessity

Answer 21

• if owner creates a situation in which own parcel is landlocked, there are some jurisdictions in which grantor would not be able to avail self of the necessity doctrine

Question 22

Schwab v. Timmons

Answer 22

• case with the house in Green Bay -> they want easement by necessity, but they don’t get it because the easement didn’t exist at the time of the severance (only created recently when the owners sold off part of their own parcels, not the parcels they’re trying to go through)

Question 23

Holbrook v. Taylor - Facts

Answer 23

• deals w/ “haul road” + red dog over the Holbrooks’ property
• Taylors build on adjacent land, + their only reasonable route of access is the haul road
• court says H’s allowed the Taylors to use the road in building the house (Ts widened the road, put in a culvert, + paved it w/ red dog)
• after 5 yrs, Hs want a writing memorializing the arrangement + $500

Question 24

Holbrook v. Taylor - Decision + Reasoning

Answer 24

• court finds for Taylors - says the licenses given by Hs invited reasonable reliance -> equitable estoppel

Question 25

Easement by Prescription and Permission

Answer 25

• similar to adverse possession, permission would destroy the easement by prescription

Question 26

Warsaw v. Chicago Metallic Ceilings

Answer 26

• case w/ the easement by prescription
• Pl builds too close to line, not giving trucks enough room to turn and back into its loading dock -> uses the adjacent property for this, having trucks enter, exit, + turn around on Def’s property
• court finds in favor of pl - prescriptive easement

Question 27

Warsaw v. Chicago Metallic Ceilings and Necessity

Answer 27

• not necessity because technically the trucks didn’t need to do what they were doing - necessity usually only deals w/ landlocked parcels

Question 28

Warsaw v. Chicago Metallic Ceilings - Costs

Answer 28

• generally, most jurisdictions say people don’t have to pay the true owners for prescriptive easements (court in this case ultimately agrees, although lower court initially said payment)

Question 29

Ancient Lights

Answer 29

• a doctrine of English common law that gives a landowner an easement or right by prescription to the unobstructed passage of light and air from adjoining land if the landowner has had uninterrupted use of the lights for twenty years.
• note that you would need to give servient owner notice of the easement (ancient lights signs)
• American courts largely reject this (see Fontainebleau)

Question 30

Fontainebleau Hotel v. Forty-Five Twenty-Five Inc.

Answer 30

• case w/ the competing hotels - Fontainebleau and Eden Roc
• Fontainebleau begins construction of 14-story addition 20 ft from its north property line -> would block pool and cabana of Eden Roc on winter afternoons
• trial court finds in favor of Eden Roc under nuisance maxim, BUT appeals court says this only applies to legal rights and there’s no legal right to free flowing light or air

Question 31

Four Negative Easements Recognized in England

Answer 31

• light striking window (ancient lights)
• air flowing in a defined channel
• lateral support of building
• flow of water in an artificial stream
• NOTE: generally difficult to acquire, b/c you have to notify people you’re claiming them

Question 32

American Courts and Negative Easements

Answer 32

• negative easements not restricted to four enumerated types (theoretically possible to create a new type)
• BUT cannot create negative easement by prescription (only affirmative easements can be created by prescription) - notes don’t provide answer why, but presumably deals with difficulty of notice

Question 33

Ways to Terminate an Easement

Answer 33

• merger/unification (if owner buys the property on which they had an easement)
• by contract
• estoppel
• prescription (a sort of counterprescription - you stop the use long enough)
• necessity
• condemnation
• destruction of servient estate (basically, it would need to be totally destroyed- fall into the sea, etc.)
• abandonment (requires affirmative act from which one can infer intent not to maintain ownership)