Easements & Covenants Flashcards
Define easement.
A non-possessory interest in the land of another.
What are the ways an easement is created?
- Express (written)
- By Implication (aka by operation of law)
- Prescription (Adverse Possession)
What is an easement in gross?
An easement that is personal to the holder and independent of his possession of any land.
What is an appurtenant easement?
An incident of ownership of the dominant tenement, and is not personal to the original holder. (attached to the estate vs. an individual possessor)
What is an affirmative easement?
Where an owner of easement has a right to go onto the land of another and do some act.
What is a negative easement?
Where an owner of an easement can prevent the owner of the servient land from doing some otherwise valid purpose.
How can you establish an easement by implication?
- From prior use or
2. Necessity
What is a covenant?
A promise that runs with the land.
How is a covenant created?
In writing. CANNOT be by implication.
What are the ways a covenant can be terminated?
- Expiration
- Merger
- Release/Recission
- Unclean Hands
- Acquiescence/Abandonment
- Eminent Domain
- Changed Circumstances
- Public Policy
What is required to enforce a real covenant?
- Intent (to bind successors)
- Horizontal Privity
- Vertical Privity
- Touch & Concern the Land
- Notice (at C/L only)
What is the difference between a real covenant and an equitable servitude?
Remedies. Real covenants provide damages; Equitable servitude provides equitable relief (injunctions or specific performance).
What is horizontal privity?
Privity of estate between the original covenanting parties
What is vertical privity?
Privity of estate between one of the covenanting parties and a successor in interest.
What are the elements to find an equitable servitude?
- parties INTENDED the covenant to run with the land
- subsequent purchaser had actual or constructive NOTICE of the covenant and
- the covenant TOUCHES & CONCERNS the land
