Easements, Profits, Covenants and Servitudes

Question 1

Easements-Introduction-LASS

Answer 1

1. Defined: the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement.
   
   • Ex. privelege to aly utility lines; gives holder access across a tract of land.
2. Easements can be affirmative or negative.
   
   1. Most easements are affirmative: right to do somethig on servient land
   2. Negative Easements: the negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in only four categories:
      
      • L: Light
      • A: Air
      • S: support
      • S: Stream water from no artificial flow
   3. NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY, BY WRITING SIGNED BY THE GRANTOR. THERE IS NO NATURAL OR AUTOMATIC RIGHT TO A NEGATIVE EASEMENT.

Question 2

Easements: Appurtenant or in Gross

Answer 2

• An easement is either appurtenant to land or it is held in gross.

1. The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property.
   
   • it takes two parcels of land. Dominant Tenement gets power, Servient tenement gets burden.
2. The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, servient land is burdened. However, there is no benefited or dominant tenement.
   
   • Right to place billboard; right to fish on other pond etc.

Question 3

Easement and Transferability:

Answer 3

1. The appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance__.
   
   • ​​burden of the easement appurtenant also passes automatically with the servient estate, UNLESS the new owner is Bonified Purchaser without Notice.
2. An easement in gross is NOT transferable unless it is for commercial purposes.

Question 4

Easements: Creation & Scope-PING/COAH

Answer 4

1. Grant: An easement to endure for more than one year must be in writing that complies with the formal elements of a deed.
   
   • Because of Statute of Frauds. The writing to evidence the easement is called a deed of easement.
2. Implication: Easment implied from existing use.
   
   • NEED: (i) previous use that was apparent and the (ii) parties expected the use would continue because it is reasonably necessary to Dominant land’s use and enjoyment.
3. Necessity: The landlocked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except with some part over the Grantor’s remaining land.
4. Prescription: An easement may be acquired by satisfying the elements of adverse possession. COAH
   
   1. Continous use for given Statutory period
   2. Open and notorious use
   3. Actual use
   4. Hostile use
5. The scope of an easement is determined by the term of grant or the conditions that created it.
   
   1. Easment not destroyed if scope is exceeded.

Question 5

Termination of an Easement: END CRAMP

Answer 5

1. Estoppel: Here, the servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced.
2. Necessity: Easements created by necessity expire as soon as: the need ends. However, if the easmen, attributable to necessity, was nonetheless created by express grant: it does not end when necessity ends.
3. Destruction of the servient land, other than through the willful conduct of the servient owner ends the easment.
4. Condemnation of the servient estate by eminent domain, ends the easement.

Question 6

Termination of an Easement: END CRAMP

Answer 6

1. Release: a written release, given by easement holder to the servient owner.
2. Abandoment: the easement holder must demonstrate by physical action the intent to never use the easement again.
3. Merger doctrine (unity of ownership). The easement is extinguished when title to easement and title to servient land become vested in the same person.
   
   • Even though there may be later separation of title the easement is not revived.
4. Prescription: : The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. COAH

Question 7

License and Profits

Answer 7

1. License Defined: a mere privelege to enter another’s land for a delineated purpose
   
   • Licenses are not subject to the Statute of Frauds. DO NOT need a writing to create a license
   • Licenses are freely revocable, at the will of the licensor, unless estoppel to bar revocation (EX: Tickets; oral easements)
   • Estoppel will apply to bar revocation only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation.
2. Profits: The profit entitles its holder to enter the servient land and take from it the soil or some substance of the soil like: minerals, timber, oil etc.
   
   • Profits share all the rules of easements. Surcharge (miuse/overly burdens)

Question 8

The Covenant

Answer 8

1. Covenant Defined: the covenant is a promie to do or not do something related to land. Not grant of property interest but rather a contractual limit or promise regarding land.
2. Affirmative** and/or **Negative:
   
   • Negative (known as restrictive covenants). Restrictive covenant is a promise to refrain from doing something related to land.
   • Affirmative Covenant. The affirmative covenant is a promise to do something related to land.
3. Covenant or Equitable Servitude: Distinguished by remedy. Money damages covenant. Injunction equitabel servitude.

Question 9

Does Burden Run: WITHN

Answer 9

Elements Necessary for Burden to Run

1. Writing: Promise between A and B must be in writing.
2. Intent: A nd B intended covenant would run. Courts are generous in finding requisite intent.
3. Touch and Concern Land: The promise must affect the parties’ legal relations as landowners, and not simply as members of community at large.
   
   • homeowner’s association fees; covenants not to compete; do not touch and cocern land.
4. Horizontal and Vertical Privity:
   
   • Horizontal Privity refers to nexus b/t A and B. Need Succession. Grantor-Grantee; Landlord-Tenant; Mortgager-Mortgagee.
   • Vertical Privity refers to nexus between A and A-1. Non-hositle nexus needed; contract; devise; descent. Not Vertical if adversely possessed.
5. Notice: A-1 had notice of promise when she took.

Question 10

Does Benefit of A’s promise to B run: WITV

Answer 10

For benefit to run need:

1. Writing: original promise from A to B was in writing
2. Intent: A and B intended benefit to run.
3. Touch and Concern: promise affects parties as landowners
4. Vertical Privity: non-hostile nexus between B and B-1
   
   • Note: Horizontal privity is not required for the benefit to run.

Question 11

Equitable Servitudes: WITNES

Answer 11

1. Equitable Servitudes Defined: the equitable servitude is a promise that equity will enforce against successors. It is accompanied by injunctive relief.
2. Creation: WITNES
   
   1. Writing: generally but not always, original promise in writing
   2. Intent: parties intended promise would bind successor
   3. Touch and Concern: promise affects parties as landowners
   4. Notice: successors of burdened land had notice of promise
3. NOTE: PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS.

Question 12

Implied Equitable Servitudes: Common Scheme AIR

Answer 12

Two Elements:

1. When the sales began the Subdivider A had a general plan/scheme of residential development which included defendant’s lot.
2. The Defendant lotholder B had notice (AIR) of promise contained in prior deed.
   
   1. A: actual notice, meaning defendant had literal knowledge of promise in prior deeds
   2. I: inquiry notice, meaning: lay of the land.
   3. R: record notice, meaning the form of notice sometimes imputed to buyers on the basis of publicly recorded documents.
   • Better view: subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor

Question 13

Equitable Servitudes: Equitable Defense

Answer 13

Equitable defenses to enforcement of an equitable servitude:

• Changed Conditions: The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that entire area has changed.
  
  • Mere packets of limited change NOT GOOD ENOUGH.