Easements, Covenants, Servitudes, Profits Flashcards
What is an easement?
An easement is a non-possessory interest in land involving a privilege or an advantage which one holds in the land of another. The easement holder has a right to use the land burdened by the easement for a special purpose or the right to restrict the owner or possessor of the land. The easement holder has no general right to full possession or enjoyment of the land.
What is the servient tenement?
In an easement appurtenant, the servient tenement is the land subject to the easement.
What is a dominant tenement?
In an easement appurtenant, the dominant tenement is the land that has the benefit of the easement.
What is a an easement appurtenant?
It is an easement that confers a benefit on a tract of land (like a pathway through land). It involves, must involve, two tracts of land. No conveyance of easement right apart from the possession of the dominant tenement.
What is an easement in gross?
This is a right to use the servient tenement. Utility companies good example. No dominant tenement by definition because this type of easement is attached to the user, not the land.
What is an affirmative easement?
Entitles the easement holder to make affirmative use of the land and enter upon the servient tenement in a away that would otherwise constitute a trespass.
What is a negative easement?
It is a form of a restrictive covenant. It entitles the holder to compel the landowner to restrict the owner of the servient tenement in some way – like building restrictions or other LAWFUL uses.
What are the 6 ways you can create an easement?
Reservation; implication; presecription; express grant; necessity.
What is the mnemonic for the 6 ways to create and easement?
RIPEN
How is an easement created by reservation?
The owner of a present possessory interest in land conveys title to someone but reserves a right to continue to come on the land and use it for a particular purpose. In short, the grantor passes tittle but reserves and easement interest.
How is an easement created by implication?
Only arises when an owner of a unitary tract of land subdivides that estate or when an owner owns a series of tracts and sells off one or more of them. In other words, there has been previous use. There must also be an element of necessity – for example, the subdividing causes one of the tracts to have no access to a road.
How is an easement created by prescription?
Like adverse possession, created by long and continued use, but need not be exclusive. zUse must be open, notorious, hostile, and continuous for the statutory period.
How is an easement by necessity created?
There needs to be a very strong showing of necessity. Unlike an easement by implication, there need not be prior use. Necessity is strict, like no access to a public road.
How is an easement by express grant created?
In writing. Signed by grantor. A deed allowing use of property. Manifest intent to create an easement, describe the land, identify the g’or and g’tee.
How are easements terminated?
Estoppel; necessity; destruction; release; abandonment; merger (unity of ownership); condemnation; prescription
How does termination of an easement by estoppel occur?
The servient landowner changes position in reasonable reliance on the easement holders assurances that the easement will no longer be enforced.
How does termination by necessity occur?
If you have an easement by necessity (which would include an easement by implication), the easement ends when the necessity ends. In other words, there is no longer the need.
How does termination by destruction occur?
The servient land is destroyed, no easement anymore.
How does termination by condemnation occur?
If servient land is condemned, no easement anymore. easement terminated.
What is termination by release?
Easement holder releases easement in writing. Concurrence of both owners. Amounts to a conveyance.
Termination by abandonment?
Through physical action or other indicia of intent, easement holder demonstrates an intent to permanently abandon the easement. Mere non-use may not be enough, but some non-use combined with other indicia (e.g words) may be sufficient.
Termination by unity of ownership/merger?
Easements involve two different people, by definition. If the owner of the dominant and servient tenement become one, then the easement is terminated.
What is termination of an easement by prescription?
Just as an easement can be created by prescription (adverse possession), an easement can also be terminated by prescription if the owner of the servient tenement excludes the easement holder from the usage of the easement for the prescribed statutory period of time. For example:
Adam and Brent are neighbors. Brent holds an easement that allows him to cut through Adam’s property to access a street. One day, Adam builds a wall between Brent’s property and the path over which Brent is supposed to be allowed to cross, thereby denying Brent access to the path. If this wall stays up for the statutory period of time and Brent brings no legal action to enforce his easement, his easement could be lost by prescription.
What is mnemonic for termination of easements?
SURE NAP. Stated condition; unity of ownership; Release; Estoppel; Necessity; Abandonment; Prescription.
What is termination by stated condition/expiration?
Amounts to there being a term in the creation of the original easement, the happening of which will cause it to terminate.
How does SOF work in context of easement?
SOF required in contracts regarding interests in land. Easements are a non-possessory interest in land so SOF doesn’t apply. Of course, you need a writing to expressly create an easement, but easements can be created in other ways.
How do transfers of easements work?
Easements appurtenant pass automatically with the dominant tenement. They also pass automatically with servvient tenement, unless new owner is BFP without notice of hteasement. Easements in gross are not transferrable, unless they are for commercial purposes, such as railroads, telephone lines, electric, etc.
What does overburdening an easement mean?
This amounts to a scope issue. If you are an easement holder, you cannot use it more than was originally intended, if such use is unreasonable. So if the easement is for you to walk across the property, and you start letting 30 people do so, then there could be a claim for overburdening. Or if you sell to 5 people.
What is a license?
A license is a personal, revocable privilege to enter upon the licensor’s land. SOF doesn’t apply. Cannot be conveyed. Attempted transfer terminates license. Can be revoked at any time by express notice or manifestation of intent. Licensee can surrender privilege as well. License ends with death of licensor. Also, with conveyance of servient t.
What is a profit?
A profit is a non-possesory interest involving the right to use the land to remove something from it. The extent and nature of the profit is determined by the words if it is an express grant or the nature of use if it is acquired by prescription. Typcially not revokable until the condition giving rise to it ends – like run out of minerals or it terminates for some other reason. Exclusive holder of a profit may divide it up among others, though might be charged with overburdening. Non exclusive cannot.
What is a covenant?
A covenant is a promise to do or not to do something that ocnersn the land. A negative or restrictive cog is a promise to refrain from doing something; a positive or affirmative covenant is a promise to do something. Enforceable by money damages. Generally, the question is whether the covenant runs with the land. That they can do this is what distinguishes these covenants from ordinary contracts which generally bind the parties only.
What are the requirements for a creation of a covenant? that runs with the land?
The core issue is whether the transferee knew or should have known about the covenant and it’s fair to bind the transferee to the terms of the covenant, then the burden will run with the land a) must touch and concern the land – that is it must benefit the covenantee and successors in their use and enjoyment of land; b) the parties must intend cov to run with land; c) privity; d) writing; e) transferee OF BURDENED ESTATE must have notice (actual, record, inquiry or imputed) (TIPS)
What is horizontal privity?
This is the nexus between the original parties to the covenant – grantor/grantee; LL/T; Mortgagor/mortgagee.
This is the element that is least likely to be satisfied. This element requires that the parties who made up the covenant must have shared some ownership or contractual relationship in the servient land. In other words, the original contracting parties must have shared some level of ownership or control in the land. This could be because the servient land was sold from one party to the other or because one party rented out the servient land to the other party, etc. However, if the two parties who agreed to the covenant were merely neighbors and one of the parties had no ownership interest in the servient land, then the covenant will not run with the land.
What is vertical privity?
Nexus between the original party and the successor. Original party must convey entire interest.
Big Bird owns two lots, side by side. He sells one of the lots to Oscar. As part of the sale, the parties agree to a covenant that guarantees that Oscar will not allow garbage to pile up on his land. Later, Slimy acquires the land from Oscar via adverse possession. The covenant will not run with the land. There is no privity between Oscar and Slimy because Oscar never transferred the property to Slimy. Slimy took it via adverse possession.
How is intent found IN RUNNING SITUATION?
This is usually satisfied with a term in the covenant that applies the covenant to the “successors heirs and assigns” of the burdened land owner. Even without this provision, such intent will usually be presumed by a court if the circumstances are such that this was the likely intent of the parties and in the absence of evidence to the contrary. Rent is a good example.
What is an equitable servitude?
Similar to a convenant in tah tit is a promise convening the land that binds the original parties and their successors. Party seeking relief will ask for injunction, not damages.
What are the elements of an equitable servitude that runs with land?
Same as a covenant that runs with land, except, no privity is required. For example, if land acquired by adverse possession, there is no vertical privity, but servitude is steel enforceable if other elements met.
What is an implied equitable servitude?
It is also known as a general or common scheme doctrine. A court will often imply an equitable servitude if the builder or developer has a common scheme or plan in place for a subdivision, thus enforcing it on successors.
Example:
Donald buys 100 acres of land with the intent to divide them into lots on which to build single family residences. He divides the property into lots and begins to sell them off, one at a time. At first, he inserts a provision into every deed that requires that the property be used only as a single family residence. However, later on, he forgets to insert this provision into the deed. Sheila buys one of these lots with the provision missing and decides to build an apartment building on her lot. Assuming that Sheila knew or should have known about the original plan, a court would likely infer an implied equitable servitude to prevent Sheila from building an apartment building on her lot.
When will ES not be enforced?
a) against public policy; b) plaintiff has acquiesced in similar violations by others; c) estoppel; d) p has laches or unclean hands.
How are ES and covenants extinguished?
Same manner as easements and profits.
