Easements/ Covenants Flashcards
Easement
non possessory right to use land of another person.
Appurtenant easement
benefits the holder in their use of a specific parcel of land, the
dominant tenement (or land).
Easement in Gross
is not connected to the holder’s use of any particular land; it is
personal to the holder. Often in commercial real estate
Affirmative Easement
allows the holder to perform act on the servient land (cross the
property of another)
Negative Easement
allows the holder to prevent the servient owner from performing
an act on the servient land. Common- (Conservation easement restricts the
development and use of the servient land to preserve open space, farmland,
historical sites or undeveloped land).
Express Easements (most easements)
- voluntarily created by the servient owner; satisfies the Statute of Frauds
(identifies the parties, describes the servient land and the dominant land, if any;
describes the exact location of the easement on the servient land, and states the
purposes for which the easement may be used) - Express easement by grant
- Express easement by reservation
Emanuel v Hernandez (implied easement by existing use)
Elements of easement by existing use:
1. Severance (common ownership followed by a conveyance separating that
ownership)
* 2. Use prior to severance (an “apparent and obvious, continuous, and
permanent” use of one parcel for the benefit of the other by the common owner
before severance of title)
* 3. Necessity (the easement must be necessary and beneficial to the enjoyment of
the parcel at the time of severance)
Holding: The plaintiffs failed to establish the second element. Brock, the owner of the common property before severance, did not have an apparent, continuous, and permanent
use of the driveway
Reasonable Necessity
- The easement must be beneficial or convenient for the use of the dominant tenement (need not be essential). Reasonable necessity usually means that alternative access or utilities cannot be obtained without a substantial expenditure of money or labor.”
-Scope: a landlocked parcel of land not connected to electric and telephone lines has an
easement by necessity for utilities and road.
- Duration: an easement by necessity lasts only so long as the necessity continues. For example:
if the state built a public road next to the dominant tenement, the easement by necessity
would end.
Prescriptive Easement
If A crosses B’s property in an open and notorious manner to reach A’s
land for a sufficient period, A may obtain a prescriptive easement
Elements of the prescriptive easement:
* (1) the adverse use of another’s land
* (2) that the adverse use was continuous and uninterrupted for at least
ten years;
* (3) that the adverse use was actually known to the owner of the land, or
so open, notorious, and visible that a reasonable owner of the land
would have notice of the use
* (4) the reasonably identified starting point, ending point, line, and width
of the land that was adversely used, and the manner or purpose for
which the land was adversely used.
* **Note that the adverse use need not be exclusive!
Easement by estoppel / irrevocable license (3 elements)
(1) A landowner allows another to use the land,
thus creating a license
* (2) The licensee relies in good faith on the license,
usually by making physical improvements or by
incurring significant costs, and
* (3) The licensor knows or reasonably should
expect such reliance will occur.
* Some jurisdictions do not recognize easement by
estoppel or irrevocable license.
Beach access and public trust doctrine
- The government as a trustee for the
benefit of the public. - When the government sells certain
property with navigable waters, the
private landowner’s title is subject to the
public’s right to use the land for fishing,
navigation, swimming, and similar
activities.
Easement Use
The “manner, frequency, and intensity of an easement’s use
may change over time to accommodate technological development”.
Terminating Easements
- By abandonment (nonuse PLUS acts by the dominant owner to conclusively and
unequivocally manifest a present intent to relinquish the easement or a purpose
inconsistent with its future existence). - By prescription using the same standard for acquiring a prescriptive easement (the servient
owner blocks use of the easement in an open and notorious, adverse and hostile, and
continuous for the prescriptive period) - By condemnation of the servient land
- By estoppel because the servient owner substantially changes their position in reasonable
reliance on the holder’s statement that the easement will not be used in the future - By merger when one person obtains title to both the easement and the servient land
- By misuse/forfeiture
- By release; the easement holder releases the easement to the servient owner by executing
and delivering a writing that complies with the Statute of Frauds.
Real Covenant Requirement
1) Statute of Frauds
* (2) Touch and Concern
* (3) Intent to bind successors
* (4) Notice (only on the burden side;
promisor’s successors)
* (5) Vertical privity
* (6) Horizontal privity
Relationship between promisor, promisees, and successors
-Burden side (OG promisor) and Benefit side (promisee) have horizontal privity
- Benefit side promisee and successors have vertical privity.
Deep Water Brewing v Fairway
Issue:
Whether the restaurant owner (Deep Water) was entitled to enforce the height restriction covenant protecting the view of Lake Chelan
Holding:
Yes, it was enforceable because of five elements of a real covenant were met.
* It was enforceable between the original parties (statute of frauds)
* Touch and concern benefitted & burdened land parcels
* Intent was for successors to be bound
* Notice, Vertical Privity, Horizontal Privity
Covenants that “fail” the test for real covenants can still be enforced as equitable servitudes, if:
They touch and concern the land;
* The original parties intended that they run with the land and bind
remote grantees; and
* The remote grantees have notice of the covenants (only on the
burden side; CB 697).
* Servitudes are a form of covenant, enforced against successors.
- The remedy for breach of equitable servitude is
inujunctive relief
Gambrell v Nivens (equitable servitude)
Facts:
- 1991 - Subdivided into 4 parcels, and sold 3 of them, including restriction on commercial use.
Restrictions were appended to deed and recorded w/it, but not listed on the deed.
* Gambrells (the original promisee) sought the benefit of the promise (that means whether the
burden runs to the Nivenses, as successors)
- Issue: Whether the trial court erred in permanently enjoining the commercial activity on the Nivens’ lot because there was an equitable servitude attached to the 1991 deed?
Holding: No, the trial court did not err in enjoining the Nivens’ use of the property because (1) the Nivens
had notice of the covenants/restrictions based on the 1991 deed; the original parties intended for
the covenant to bind remote grantees; 2) deposition testimony demonstrated parties’ intent for
the covenant to bind remote grantees; and the covenant touched and concerned the land because
it restricted the grantee’s (and successor’s) use of the burdened parcel.
Shelley v Kraemer (racist covenant)
Holding
* State action – judicial enforcement of a private, racist housing covenant
* Judicial enforcement of the racial covenants violated the Fourteenth
Amendment.
Aftermath of Shelley
* Expunging Discriminatory Covenants
* The Fair Housing Act supplemented Shelley by providing that the creation of
discriminatory covenants is illegal.
