Easements, Equitable Servitudes, and Covenants Flashcards
Easement
A nonpossessory interest that gives one a right to use another’s land.
Acquired by: open and notorious use, without the owner’s permission, over a minimum period of time established by law, Continuous use without interference by the true owner, the possessor must actually use the land, hostile and adverse exclusive (minority jurisdictions), present for statutory period.
Sallish v. Vulles
Public Prescriptive Easements
Protects public’s interest in land
Requires:
1: Dedication
2. Public trust
a. long usage
b. widespread public belief in the right to use
c. long acquiescence by upland owners
d. public use extremely desirable
Thorton v. Hay (Beach cabanas)
Types of easements
1) . Affirmative: the right to use another’s property for a specific purpose
2) . Negative: the right to prevent another from performing a otherwise lawful activity on their own property (courts are reluctant to enforce negative easements because they impinge on the fee ownership of the servant estate)
Appurtenant Easement
one which benefits the holder of the easement, or the dominant tenement. The one who’s land is being used, or burdened, and is subject to the easement is the servant tenement.
-Passes with ownership of the dominant parcel. If the servant land is transferred, the new owner takes the land subject to the burden of the easement, but he must have actual or constructive notice of the easement
Easement in Gross
When easement isn’t connected to land but to an individual. Always have a servant estate, but no dominant estate
-Not transferable or inheritable
Creation of easement
- By prescription
- By express agreement: must be in writing and signed by grantor
a. express reservation: owner conveys title but reserves the right to continue to use the land for a particular purpose (no interest in land, title search problems, contravenes the rule that easements lie in grant, dominant estate may be difficult to define)
b. reservation to a third party is invalid for four reasons ( - By implication (an express agreement will always override an implied agreement)
a. implied from plat (streets used to gain access to lot in development)
b. Prior use
c. By necessity- division of land causes land locking parcel of land to no longer have access to a public street)
i. Unity of ownership severed the property
ii. the severance created necessity for access
iii. the easement is strictly necessary for access
Covenants
contractual easements designed to bind their successors. A written promise to do something on the land. Covenant runs with the land
Elements:
- intention to run with the land, the covenant touches and concerns the land (usuallyy relates to use and enjoyment of the land)
a. consider the affect on the value of the property the covenant has and the affect upon the property owners legal rights, whether benefitted or burdened
Damages:
-limited to damages, not injunctions
Covenant test
- must be in writing
- It has to touch and concern the land
- original parties must have intended that the promise runs with the land. (look at words in the deed to imply intention)
- New party must have notice of covenant-actual or constructive
- original party who agreed to promise must both have an interest in the land that is encumbered
Horizontal Privity
The relationship between the original covenanting parties; requires that at the time the parties entered into the covenant, the two shared interest in the land
- lease- if successor landlord wanted to sue original tenants for rent, the fact that a lease existed between original LL and Original T would satisfy horizontal privity
- Land transfer- if the parties create the covenant in a deed or ther instrument that transfer the land from one party to another, teyy have horizontal privity
- Easements- if they create a covenant that relates to interests they both have in the same land, like an easement, they have horizontal privity
Vertical Privity
Fulfilled if the successor to the burdened land holds the same property interest as the original party.
1. Lease- if successor LL held the same interest as Original LL, then vertical privity is satisfied. If Successor T assigns the lease, vertical privity is satisfied because they hold the same interest.
Conversely if Successor T subleased, then vertical privity is not satisfied
- Land transfer: an assignee acquiring a life estate from the predecessor, who held it in fee simple absolute, does not satisfy vertical privity.
Note: homeowners ass. may satisfy the privity requirement because they act as a medium through which enjoyment of the owner’s right may be preserved (nepotist)
Notice
Buyer must have actual or constructive notice of the covenant at the time the buyer took possession.
Elements for the Benefit to run with the land
- Statute of frauds, must be in writing
- Intent
- Touch and concern (must benefit the party in use and enjoyment)
- Vertical privity- for the benefit to run, the successor must own either the same steatite as the original owner, or a lesser estate that was part of the original O’s estate
- No horizontal privity is required
Policy
Protects property values and protects free choice
Equitable Servitude
an equitable interest in the property of another (the burdened estate).
-No privity required
Damages:
-Specific performance or injunction allowed, not damages
-First, look at the damages? What are they seeking? If injunction then Equitable servitude
Servitude Requirements
- writing
- intent
- notice (actual or constructive)
- touch and concern (considered the reasonableness of binding the successor)
- NO PRIVITY REQUIRED
