Easements, Licenses, and Covenants

Question 1

Easement:

Answer 1

The grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement.
The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement on a servient estate is the dominant estate.

Question 2

Easements by Grant:

Answer 2

An affirmative easement gives another the right to use the land for a specific purpose.
There are no specific language requirements necessary to grant an easement so long as the explicit grant clearly evidences the intent to grant the easement.

Question 3

Easement by Reservation:

Answer 3

Created when a grantor conveys land but reserves an easement right in that land for his own use and benefit (and not for a third party).

Question 4

Easements Appurtenant:

Answer 4

Easements are presumed to be appurtenant (i.e., tied to the land) unless there are clear facts to the contrary.
The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate (two parcels of land must be involved).

Question 5

Easements In Gross:

Answer 5

If it was granted to benefit a particular person or commercial gain (as opposed to the land).
Only one parcel is involved (the servient tenement).

Question 6

Express/Affirmative Easements & Types:

Answer 6

Arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds.

1. Prescription
2. Implication
3. Necessity
4. Grant
5. Estoppel

Question 7

Easements by Necessity:

Answer 7

An easement by necessity is generally created only when property is virtually useless (e.g., landlocked) without the benefit of an easement across neighboring property
Both the dominant and servient estates must have been under common ownership in the past and the necessity must have arisen at the time that the property was severed and the two estates were created.
The scope of an easement by necessity is limited to the nature and extent of the necessity, and is determined by the parties’ conduct.

Question 8

Easement by Implication:

Answer 8

If an easement was previously used on the servient estate by an earlier owner, the court may find that the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land’s use and enjoyment (distinguish from an easement by necessity, which requires strict necessity).
Easements may also be implied without an existing use in a conveyance of lots sold in a subdivision with reference to a recorded plat or map that details streets leading to lots
Individuals who buy lots have an implied easement to be able to get to their lots that does not expire even if a public easement held by the city or county is vacated in the future.
A court will not grant an easement by implication if the petitioner has another reasonable means of accessing the property.

Question 9

Quasi-Easement:

Answer 9

Because an owner cannot have an easement on his own land, this is considered a “quasi” easement.
The scope of a quasi easement is determined by the prior use that gave rise to the easement, but can change over time if the changes are reasonably foreseeable at the time of conveyance.

Question 10

Easements by Prescription:

Answer 10

Easements can be obtained by prescription similarly to the way land can be acquired by adverse possession.
There must be continuous, actual, open, and hostile use for the statutory period (or 10 years).
Unlike adverse possession, the use need not be exclusive (such as a public easement to access a beach).
The scope of an easement by prescription is limited to the nature and extent of the adverse use.

Question 11

Easements by Estoppel:

Answer 11

Good faith, reasonable detrimental reliance on permission by a servient estate holder may create an easement by estoppel to prevent unjust enrichment.
Distinguish this example from easement by prescription, which requires that the use be hostile (i.e., no permission was given).
To prove an easement by estoppel, there must be permission to use the property, plus detrimental reliance on that permission.

Question 12

Negative Easements (Restrictive Covenants):

Answer 12

Prevents the owner from using land in particular ways.
To be valid, a negative easement must be expressly created by a writing signed by the grantor and it is typically recognized only in relation to restricting use of light, air, support, or stream water from an artificial flow (only appurtenant).
No natural or automatic right to a negative easement.

Question 13

Easement Appurtenant (Transfer):

Answer 13

An easement appurtenant is transferred with the land to which it relates.
Consequently, the benefit is transferred automatically with the transfer of the dominant estate, and the burden likewise is transferred automatically with the transfer of the servient estate.

Question 14

Easement in Gross (Transfer):

Answer 14

Traditionally, an easement in gross could not be transferred, but most courts now look to the intent of the parties to determine whether the parties intended only the holder of the easement in gross to enjoy the right, in which case it is not transferable, or whether the parties intended the holder to be able to transfer it.
Easements in gross are not divisible without the consent of all parties holding an interest.
A non-exclusive easement may not be divided up, but an exclusive easement may be.
However, the division of an exclusive easement in gross is subject to the one-stock rule.
Under this rule, the use that the transferees make of the easement collectively is limited by the use that the transferor made of the easement (i.e., his “stock”).
Commercial easements in gross are transferable and assignable.

Question 15

Easement Terminations:

Answer 15

END CRAMPSS

1. Estoppel
2. Necessity
3. Destruction
4. Condemnation
5. Release
6. Abandonment
7. Merger (Unity of Ownership)
8. Prescription
9. Severance
10. Sale to a Bona Fide Purchaser

Question 16

Release:

Answer 16

An easement can terminate by a writing that expressly releases the easement right and complies with the Statute of Frauds.

Question 17

Merger:

Answer 17

The easement is terminated when title to the easement and title to the servient tenement become vested in the same person.
Under such circumstances, the easement is not automatically revived unless a new grant is made.
Note that the easement does not merge if the owner acquires less than fee title, and merger is applicable only to easements appurtenant.

Question 18

Severance:

Answer 18

Any attempt to convey an appurtenant easement separate from the land it benefits terminates (or “severs”) the easement.

Question 19

Abandonment:

Answer 19

An easement can be terminated if the owner of the easement acts in an affirmative way that shows a clear intent to relinquish the easement right.
Mere statements of intent without affirmative conduct are insufficient to constitute abandonment, but they may constitute estoppel.
Mere non-use of the easement is also not sufficient to extinguish the easement right.

Question 20

Destruction & Condemnation:

Answer 20

Destruction of a structure on the servient estate by natural forces can terminate an easement if the easement is related to the structure (e.g., access to a lighthouse).
Condemnation of the servient estate also terminates an easement.
Note that some courts permit the holder of the easement to receive compensation because of the condemnation.

Question 21

Prescription:

Answer 21

If an easement holder fails to protect his easement against a trespasser for the statutory period, his easement right may be terminated by prescription.

Question 22

Estoppel:

Answer 22

If the servient estate owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned, the easement holder may be estopped from asserting the easement.

Question 23

Sale to a Bona Fide Purchaser:

Answer 23

If a written easement is granted but not recorded against the servient estate, the easement is not enforceable against a bona fide purchaser (i.e., a purchaser with no notice of the easement).
The easement is not actually terminated, but rather it becomes unenforceable.

Question 24

Scope of Easement:

Answer 24

The scope of an easement is not defined by its physical characteristics, but by its purpose (terms or conditions that created it).
If a change in an easement originally created by grant or reservation increases the burden on the servient land but does not change the nature of the burden, the increased burden will not be enjoined unless the easement is expressly limited to a particular use or purpose.
However, a use different from that which existed at the creation of the easement and which imposes an additional burden is prohibited.
A change in the degree of a burden is insufficient to constitute an additional burden.
An owner of land subject to an easement may use the easement for any lawful purpose so long as such use does not interfere with the easement holder’s rights to use the easement, but does not have responsibility to maintain it.
The owner of a dominant estate has the sole responsibility to maintain and repair the easement without making a material alteration to the character of the easement that interferes with the use and enjoyment of the servient estate by its owner

Question 25

Profits:

Answer 25

A profit is an easement that confers the right to enter another’s land and remove specific natural resources (such as oil, gas, minerals, timber, or game).
Profits are created and analyzed similarly to easements, except that profits cannot be created by necessity.
Always assignable.

Question 26

Licenses:

Answer 26

As with an easement, a license is a non-possessory right to enter another’s land for some delineated purpose without sole and exclusive dominion and control over the space, regardless of the terms written in the agreement (lease or license).
Unlike an easement, a license is freely revocable unless coupled with an interest or detrimentally relied on (e.g., if money is spent in furtherance of the license-estoppel/parol)

A license may be created without consideration or a writing
Because no writing is required, a license is created when there is an oral attempt to create an easement or written attempt otherwise fails due to the Statute of Frauds.

Question 27

Covenant:

Answer 27

The covenant is a promise to do or to not do something related to land.
Unlike easements, profits, and licenses (which grant affirmative rights to use land), real covenants and equitable servitudes restrict the right to use land.
When damages are sought to enforce the covenant, the covenant is called a “real covenant” - legal device.
When an injunction is sought to enforce a covenant, it is called an “equitable servitude” - equitable device.

Question 28

Requirements to Run:

Answer 28

The requirements necessary for both the benefit and the burden to run with the land (subsequent owners may enforce or be burdened by the covenant), unless otherwise indicated.
Analyze first whether the burden runs (WITHN) (then whether the benefit runs (WITV)).
1. Writing
2. Intent
3. Touch and Concern
4. Horizontal Privity - burden only
5. Vertical Privity
6. Notice - burden only

Question 29

Writing:

Answer 29

In order for a covenant to be enforceable, it must first comply with the Statute of Frauds.
The only exception is an implied equitable servitude, which does not require a writing.

Question 30

Intent:

Answer 30

The parties must intend for the rights and duties to run with the land.
Look for either explicit language like “and his heirs and assigns,” or implication from the totality of the document and circumstances.

Question 31

Touch & Concern:

Answer 31

The covenant must “touch and concern the land,” which generally means that the person seeking enforcement must establish that the benefit or burden affects both the promisee and the promisor as owners of land and not merely as individuals.

Question 32

Notice:

Answer 32

Under the recording acts, a subsequent purchaser without notice of a burdening covenant is not bound by it.
Such notice can be constructive (recorded in the chain of title), actual (awareness that the covenant exists), or inquiry (duty to find out).

Question 33

Horizontal Privity:

Answer 33

For the burden to run, the original parties to the covenant must have privity of estate at the time the agreement creating the covenant is entered into.
This means that there must be some shared property interest apart from the covenant itself.
Not needed for benefit to run, only burden.

Question 34

Vertical Privity:

Answer 34

The successor to the property can enforce the covenant (i.e., the benefit runs) as long as the property interest possessed by the successor is at least some portion of the property interest held by the promisee.

Question 35

Equitable Servitudes:

Answer 35

Covenants about land use that are enforced at equity by injunction.
Requirements: WITNES.
Unlike with a real covenant, with an equitable servitude, a party seeking to enforce it need not show privity, but the party is limited to equitable remedies.

Question 36

Implied Equitable Servitude:

Answer 36

Arises when a subdivider conveys lots through deeds that contain a common restriction, but later conveys one or more of the remaining lots through deeds containing no such restriction.
Implied equitable servitude seeks to require the unrestricted land holder to the have equity with the rest of the land holders, and also be restricted.
The elements of the common scheme doctrine must be satisfied.

Question 37

Common Scheme Doctrine:

Answer 37

There must be intent to create a servitude on all plots (i.e., the promise must be reciprocal).
The servitude must be negative (i.e., a promise to refrain from doing something).
The party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice.
Note that no writing is required for an equitable servitude created by implication.

Question 38

Changed Circumstances:

Answer 38

If a restriction on a property no longer makes sense to enforce because of drastic changes in the surrounding area since the restriction was first contemplated, the restriction will not be enforced.

Question 39

Termination of Covenants:

Answer 39

Release, Merger of Title, Abandonment, Estoppel, Condemnation, or Sale to a Bona Fide Purchaser