Easements, Profits, Covenants and Servitudes Flashcards
Easements, profits, covenants and servitudes are what kind of interests? Why are they called that?
Nonpossessory interests. They are called this because those who hold them have no possessory interest in the land itself.
Easement
the right to use another’s land for a special purpose.
An easement is presumed to be of _____________ duration unless otherwise stated.
perpetual
Affirmative Easement
the holder of the easement is permitted to take particular kinds of actions on another’s land.
Negative Easement
a restrictive covenant.
Easement Appurtenant
where the owner of land appurtenant to the holder’s land allows the holder to cross his land in order to get to his land. The dominant tenement is the land benefitted by the easement, whereas the servient tenement is the one burdened with the easement.
Does an easement appurtenant run with the land?
Yes, for both servient and dominant estates.
Easement in Gross
where the holder of the easement is permitted to enter another’s land for the purpose of taking a particular kind of action.
Are easements in gross transferable?
Only those which are for economic purposes. Those for personal enjoyment are not transferable.
What are the ways of creating an easement?
1) writing and signed by the holder of the servient estate if for less than one year; 2) by implication; or 3) by prescription.
Easement by Prescription
analogous to acquiring property by adverse possession. The use of the land must be open and notorious, adverse, continuous and uninterrupted, and for the statutory period.
What is the scope of an easement absent limiting language?
That the easement accounts for present and future needs of the dominant estate.
Who is responsible for repairs to the easement?
If the holder is the sole user of the easement, then they are the sole repairer. If both parties use the easement, they can apportion the repair costs.
How can an easement be terminated?
Lots of ways: by the conditions of the easement, by the two parcels merging, by one party releasing the other from the easement, from abandonment by physical action, estoppel, necessity, etc.
How can an easement by prescription be terminated?
There must be an adverse, continuous interruption of the use of the prescriptive period.
License
a privilege to go onto the land of another which is revocable by the grantor. Licenses are not interests in land.
A failed attempt at creating an easement results in a ___________.
license
When might a license become irrevocable?
When 1) the licensee has invested substantial time and money in reliance on the license, the grantor may be estopped from rescinding it; and 2) when a license is coupled with an interest.
Profit
an entitlement to the holder of the profit to take resources from the servant estate.
What is impliedly present in a profit?
An easement to enter the land for the purpose of extracting the profit.
Real Covenant
a written promise to do something on the land or a promise not to do something on the land. Real covenants run with the land.
What is required for a real covenant to run with the burdened land?
The real covenant must be 1) intended to run with the land; 2) give notice to subsequent purchasers of the land; 3) the creator and grantee of the covenant must be in horizontal privity; 4) the subsequent purchaser must be in vertical privity with the original grantee; and 5) the covenant must touch and concern the land, i.e. require action/inaction on the part of the parties.
What is required for a promisee’s successor to have the power to enforce a real covenant?
There must be 1) intent to transfer the enforcement power; 2) the grantee and the successor must be in vertical privity; and 3) the benefit must touch and concern the land.
Equitable Servitude
a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant.
What are the damages for real covenants?
Money damages
What are the damages for equitable servitudes?
Injunction
How is an equitable servitude created?
A promise in writing which satisfies the statute of frauds.
Must a negative equitable servitude be written?
Not necessarily, if they can be implied from a common scheme for development of a residential subdivision.
Where in a residential subdivision some deeds have express negative servitudes, and others do not, what should one infer?
That there is an implied negative equitable servitude in one’s deed.
For an owner of land to be bound by an implied negative equitable servitude, what must be shown?
1) there was a common scheme where the contractor building the subdivision intended all residents to be bound by the negative servitude, and 2) notice to the owner of the property of deeds in the subdivision that contained negative equitable servitudes.
What must be present in order for a successor owner of land to be bound by a negative equitable servitude?
1) covenanting parties intended the servitude be enforceable against assignees; 2) the successor has actual inquiry notice of the servitude; and 3) the covenant touches and concerns the land.
What are the defenses to enforcement of a negative equitable servitude?
There are several: unclean hands, estopplel, laches or changes in the neighborhood.
Unclean Hands
the one trying to enforce a negative equitable servitude is violating a similar restriction on his own land.
When might someone be estopped from enforcing a negative equitable servitude?
Where the benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived.
Laches
the benefitted party fails to bring suit to enforce the servitude within a reasonable time.
How can a servitude be terminated?
By a written release, merger of the parcels, or condemnation of the burdened property.
Where an easement is made redundant by a change in the property, is it extinguished?
No. It remains.
In an easement by prescription, is exclusive possession by the user of the land necessary?
No. The person seeking an easement by prescription does not have to be the only person using the land. Exclusivity is only necessary in cases of adverse possession.
When can the doctrine of changed neighborhood conditions be used to override a restriction in a restrictive covenant not to use land for a particular type of use?
Where the entire subdivision has changed so significantly that enforcement of the restriction would be inequitable. Where only some of the plots in a subdivision are affected by the change, the defense cannot be used.
What does it mean that an easement has been surcharged?
the easement’s legal scope has been exceeded.
