Easements/Covenants Flashcards
What is a Servitude?
A right or obligation that RUNS WITH THE LAND meaning it automatically passes to subsequent owners or possessors of the land; often necessary to secure expectations of the land
What are the five types of servitudes?
(1) Easements: right to use land
(2) License: Right to enter someone’s land (DO NOT RUN WITH THE LAND)
(3) Profit: Right to obtain benefit by taking a part off of someone else’s land (e.g. timber, crops, etc.)
(4) Real Covenant: Right to restrict what another can do with his own land. Remedy is damages.
(5) Equitable Servitude: Same as covenant except no privity required. Damage is injunction.
What is an affirmative and negative servitude?
Affirmative servitude: Right to use another’s land for a limited purpose. Easements, licenses, and profits.
Negative servitude: Restrictions with respect to what owner’s can do with their land. Real covenants and equitable servitudes
What is an Appurtenant Servitude?
Land subject to the burden of a servitude is the burdened estate. Land subject to the benefit is the benefit/dominant estate.
If there is a benefitted estate, that is a APPURTENANT SERVITUDE.
What is Servitude In Gross?
The benefit of the servitude is held by an individual/entity rather than running with the parcel of land.
Example: Servitude to run utility lines. Utility company owns the benefit of the servitude may move its HQ and still enjoy the servitude right.
What is an Easement?
Affirmative servitude; right to use another’s land for a limited purpose
What is an Affirmative/Negative Easement?
Affirmative Easement: Owner of the affirmative easement has the right to GO ONTO the land of another (servient estate) and do some act on the land
Negative Easement: The owner of the negative easement has right to prevent the owner of the servient estate from doing something that affects our property. (e.g. right to lateral support, air and light being blocked by construction, interference with flow of stream)
Test: Whether or not easement runs with the land
(1) It is in writing and complies with the SoF
(2) Subsequent owners of the servient estate were on NOTICE (actual/inquiry/constructive)
(3) It was the intent of the original grantor for the easement to run with the land
What is an Easement by Estoppel? What are the elements?
Easement by Estoppel: Conduct of an owner of land leads another to reasonably believe that they had an easement interest and those people acted in reliance
(1) Permission from the owner to use the land
(2) Others change position in foreseeable and reasonable reliance
(3) Finding the easement is necessary to prevent injustice
What is Easement by Prescription? Elements?
EBP: Right to use ones land after continued use. Basically AP with no ownership.
(1) Actual Possession: use as an owner would
(2) Open and Notorious: sufficiently visible to put others on notice
(3) Exclusive: Cannot be shared
(4) Continuous: Done in continous way customary to owners
(5) Adverse/Hostile: without permission
(6) Statutory period: Check SOL
(7) Some states add acquiescence
What is an Easement by Prior Use? Elements?
EBPU: Found when a parcel of land is divided or severed and prior to severance one part of the estate becomes landlocked, requiring a right of way other the other
(1) Two parcels were previously owned by the grantor
(2) One parcel was previously used for benefit of the other parcel in a matter that was apparent and continous
(3) The use is reasonably necessary
What is an Easement by Necessity? Elements?
EBN: When tracts are severed and one of the tracts becomes landlocked and requires a right of way over the other part
Do Easements run with the land? (Yes or No)
Yes! Easement’s run with the land. Attached to the dominant tenement
What is a Covenant?
Negative servitude; right to restrict what another can do with his own land
Elements for a Covenant to be created:
(1) In writing/compliant with SoF
(2) Intent (clear cut language/permanency/accordance with general plan)
(3) Touch and concern the land
(4) Privity of estate
