Easements, Covenants & Servitudes

Question 1

Specific words of inheritance or words of art are not necessary to create a valid appurtenant easement, even of unlimited duration.

Answer 1

The rule in Mitchell v. Castellaw

Question 2

Words of art are not necessary to create …

Answer 2

… are not necessary to create an easement

Question 3

Definition of “easement appurtenant”

Answer 3

An easement which benefits a specific parcel of land, regardless of the owner’s identity.

Question 4

Definition of “easement in gross”

Answer 4

An easement that benefits the holder without regard to whether the holder owns an adjoining or nearby parcel; it does not belong to any particular parcel of land.

Question 5

An easement is an interest in land in the possession of another which:
(a) ___
(b) ___
(c) ___
(d) ___
(e) ___

Answer 5

(a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;
(b) entitles him to protection as against third persons from interference in such use or enjoyment;
(c) is not subject to the will of the possessor of the land;
(d) is not a normal incident of the possession of any land possessed by the owner of the interest, and
(e) is capable of creation by conveyance.”

Question 6

Affirmative easements …

Answer 6

… entitle one to do acts upon the burdened land or which affect the burdened land

Question 7

Negative easements …

Answer 7

… entitle the owner of the easement to prevent the owner of the burdened land from making certain uses of his land

Question 8

Licenses are not subject to conveyancing rules, because …

Answer 8

… because they are not interests in land

Question 9

Contrary to the common law rule, a grantor may reserve an interest in property for a third party.

Answer 9

The rule in Willard v. First Church of Christ, Scientist, Pacifica

Question 10

When a grant is general and the reservation is specific …

Answer 10

.. it can be inferred that the grant is meant to be qualified by the specific reservation, and accordingly to that extent both should be allowed to stand

Question 11

Per the common law rule, a person cannot “reserve” …

Answer 11

… interest in land to strangers to the title

Question 12

the creation of an easement in a third party can easily be accomplished by a prior conveyance to the third party, instead of

Answer 12

“reserving” interest in land to the third party

Question 13

An easement may be created by estoppel when the grantee expended substantial money in reliance on the fact that the grant would be continuous.

Answer 13

The rule in Stoner v. Zucker

Question 14

Easements can be created by estoppel (T/F)

Answer 14

True: ____ can be created by estoppel

Question 15

Explaining the Statute of Frauds

Answer 15

A law that provides that certain promises and agreements are not enforceable unless they are in writing and signed by the person to be charged or by someone lawfully authorized to sign for him or her.

Question 16

A lease: conveys _______, is not ______, and, if of sufficient duration, requires ______.

Answer 16

a) conveys a possessory interest in
land,
b) is not revocable absent a breach
by the lessee, and,
c) if of sufficient duration, requires a
writing to comply with the statute
of frauds.

Question 17

A license: does not convey ______, does not require ______, and merely excuses ______.

Answer 17

a) does not convey an interest in
land,
b) does not require a writing
regardless of proposed length, and
c) merely excuses acts done on land
that would otherwise constitute a
trespass

Question 18

Easements can be created by implication (T/F)

Answer 18

True: ____ can be created by implication

Question 19

Where an owner of land conveys a parcel of it which has no outlet to a highway except over the grantor’s property or over a third party’s property, an easement by necessity is created over the grantor’s property.

Answer 19

The rule in Finn v. Williams

Question 20

An easement of necessity is implied…

Answer 20

… when there was once unity of title and the dominant estate has no access except over the subservient estate.

Question 21

Definition of “easement of necessity”

Answer 21

An implied easement that is created when a parcel of land is conveyed with no means of ingress and egress.

Question 22

Definition of “mesne conveyance”

Answer 22

Intervening conveyances.

Question 23

An easement may be created by implication if there was a prior existing use that was apparent and continuous and if there was unity of ownership.

Answer 23

The rule in Granite Properties Limited Partnership v. Manns

Question 24

An easement may be inferred from…

Answer 24

… prior existing use

Question 25

Easements may be created by prescription (T/F)

Answer 25

True: ____ may be created by prescription

Question 26

The Restatement of Property has 8 “important circumstances” …

Answer 26

… where an inference of intention may be drawn.

Question 27

An easement implied from a prior existing use is often characterized as…

Answer 27

… “quasi-easement”

Question 28

Easements implied from prior use can include…

Answer 28

…underground sewer and utility lines that were not apparent at the time the parcels were severed

Question 29

To establish a prescriptive easement, a claimant must show an open and notorious use of the defendant’s land adverse to the defendant’s rights, for a continuous and uninterrupted period.

Answer 29

The rule in Beebe v. DeMarco

Question 30

Definition of “easement by prescription”

Answer 30

An easement that is acquired through use over an extended period of time without contest by a possessor with an enforceable right to bar the use.

Question 31

The doctrine of easement by prescription is a type of …

Answer 31

… is a type of adverse possession

Question 32

Anything that disproves acquiescence, such as an express denial of permission to use a driveway…

Answer 32

…rebuts the presumption and defeats the claim to a prescriptive easement.

Question 33

Acquiescence is not active like a license, but is …

Answer 33

… consent by silence.

Question 34

An easement may be used only in connection with the estate to which it is appurtenant.

Answer 34

The rule in S.S. Kresge Co. v. Winkelman Realty Co.

Question 35

An easement may be used only for the …

Answer 35

… estate to which it is appurtenant .

Question 36

When an easement is created by prescription, only ____ may continue.

Answer 36

When ____, only the type of use that created the easement ____.

Question 37

The dominant estate in an easement created by prescription may not be…

Answer 37

enlarged so that the easement benefits more land.

Question 38

Definition of “servient estate”

Answer 38

The land that is burdened by an easement.

Question 39

Definition of “dominant estate”

Answer 39

The land that benefits from an easement.

Question 40

If the location of an easement is specified in a deed, the easement may not be relocated, even if the relocation is reasonable.

Answer 40

The rule in Sakansky v. Wein

Question 41

Definition of “floating easement”

Answer 41

An easement for an express purpose (such as a pipeline or access to adjacent property) which burdens the entire servient estate until its location is established.

Question 42

The scope of an easement is usually determined by …

Answer 42

… is usually determined by the terms of the grant.

Question 43

Abandonment of an easement requires intent, whether express or implied, but mere non-use is not enough.

Answer 43

The rule in Lindsey v. Clark

Question 44

The termination of an easement requires …

Answer 44

… intention, not just not use

Question 45

Like a fee simple estate, an easement may…

Answer 45

like a ____, an easement may last forever

Question 46

Definition of “general warranty”

Answer 46

A statement in a deed that grantor agrees to defend the title from claims of others. In general, the seller is representing that he or she fully owns the property and will stand behind this promise.

Question 47

A property owners association has privity of estate with a property owner for the purpose of a covenant running with the land.

Answer 47

The rule in Neponsit Property Owners’ Ass’n v. Emigrant Sav. Bank

Question 48

Essentials of a real covenant:
a)
b)
c)

Answer 48

a) It must appear that grantor and
grantee intended that the covenant
should run with the land;
b) it must appear that the covenant is
one “touching” or “concerning” the
land with which it runs;
c) it must appear that there is “privity
of estate” between the promisee or
party claiming the benefit of the
covenant and the right to enforce
it, and the promisor or party who
rests under the burden of the
covenant.

Question 49

Definition of “covenant running with the land”

Answer 49

An agreement that may be enforced by the original contracting parties and also by and against the successors of either party.

Question 50

A covenant will be enforceable in equity against a person who purchases land with notice of the covenant.

Answer 50

The rule in Tulk v. Moxhay

Question 51

Traditional vertical-privity doctrine required …

Answer 51

… required an identity of estate between the covenantor and his successors and the covenantee and her successors.

Question 52

Under the “relaxed” view of vertical-privity …

Answer 52

… benefits and burdens run to successors such as lessees and life tenants who have a possessory interest in the land.

Question 53

Definition of “equitable servitude”

Answer 53

A covenant regarding the use of land that is enforceable against subsequent possessors in equity, even if the covenant itself is not enforceable at law.

Question 54

When a ____ is breached, the remedy is damages in a suit at law.

Answer 54

When a real covenant is breached, the remedy is _____.

Question 55

When an equitable servitude is breached, the remedy is either ____ or _____, which secures a promise to pay money, in a suit in equity.

Answer 55

When ____ is breached, the remedy is either an injunction, or enforcement of a consensual lien, which ____, in a suit in equity.

Question 56

An equitable servitude is not enforceable against buyers who had no written notice of it.

Answer 56

The rule in Sprague v. Kimball

Question 57

Property owners with a ____ in their deed may not enforce the covenant against other owners without written notice of it

Answer 57

Property owners with a restrictive covenant in their deed may not ______

Question 58

An equitable servitude can be implied on a lot, even when the servitude is not created by a written instrument, if there is a scheme for development of residential subdivision and the purchaser of the lot has notice of it.

Answer 58

The rule in Sanborn v. McLean

Question 59

Definition of “reciprocal easement”

Answer 59

An easement created when the owner of two or more lots sells one with restrictions on it that benefit the land retained by the owner.
This sale creates a mutual servitude, and while it is in effect, the original owner cannot use his or her retained land in any way that is forbidden to the buyer of the other lot.

Question 60

Elements that must be met for a reciprocal negative easement to be held for every deed in a subdivision after the first deed issued with the covenant:
a)
b)
c)
d)

Answer 60

a) vertical privity
b) intent
c) the restriction must touch and
concern the land
d) the buyer without the restriction in
his deed must have notice of the
restriction (actual, constructive, or
inquiry notice)

Question 61

Definition of “constructive notice”

Answer 61

The buyer should reasonably have known about the restriction from the circumstances.

Question 62

Definition of “actual notice”

Answer 62

The purchaser actually knew of the restriction.

Question 63

Definition of “inquiry notice”

Answer 63

The purchaser had or should have had enough knowledge to suspect that there might be some restriction –> putting the purchaser in a position under which they should have inquired.

Question 64

A restrictive covenant will become unenforceable only if changed conditions affect the entire subdivision that is subject to the covenant.

Answer 64

The rule in Cowling v. Colligan

Question 65

The effect of a reservation should be distinguished from an _____, which prevents some part of the grantor’s interest from passing to the grantee. The _____ cannot vest an interest in the third party, and the ____-ed interest remains in the grantor.

Answer 65

The effect of a ____ should be distinguished from an exception, which ____. The exception cannot ____, and the excepted interest ____.

Question 66

Changed conditions must affect an entire development to terminate a covenant (T/F).

Answer 66

True: Changed conditions must ___ to terminate a covenant.

Question 67

the common law, “cujus est solum, ejus est usque ad coelum et ad inferos”

Answer 67

the common law in Latin, meaning “to whomsoever the soil belongs, he owns also to the sky and to the depths.”

Question 68

the Supreme Court officially abolished the principle of usque ad coelum and set forth this new rule:

Answer 68

a landowner has air rights only insofar as they are essential to the use and enjoyment of the land.

Question 69

Flights over private land are a taking under the Fifth Amendment if they are so low and frequent as to directly and immediately interfere with the enjoyment and use of the land.

Answer 69

The rule in United States v. Causby

Question 70

A local government has broad authority to deny zoning subdivision requests for valid health and safety factors so long as it has governing regulations, enacted pursuant to state law, which allow or require consideration of these factors.

Answer 70

The rule in Durant v. Town of Dunbarton

Question 71

Rights in airspace, as well as rights to minerals underground, may be …

Answer 71

____, as well as ____, may be severed from ownership in the surface

Question 72

Governments have a very broad authority to determine …

Answer 72

____ have a very broad authority to determine zones, as well as zone requirements and restrictions.