Easements, Profits, Covenants and Servitudes

Question 1

Easements, profits, covenants and servitudes are what kind of interests? Why are they called that?

Answer 1

Nonpossessory interests. They are called this because those who hold them have no possessory interest in the land itself.

Question 2

Easement

Answer 2

the right to use another’s land for a special purpose.

Question 3

An easement is presumed to be of _____________ duration unless otherwise stated.

Answer 3

perpetual

Question 4

Affirmative Easement

Answer 4

the holder of the easement is permitted to take particular kinds of actions on another’s land.

Question 5

Negative Easement

Answer 5

a restrictive covenant.

Question 6

Easement Appurtenant

Answer 6

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.

Question 7

Does an easement appurtenant run with the land?

Answer 7

Yes, for both servient and dominant estates.

Question 8

Easement in Gross

Answer 8

where the holder of the easement is permitted to enter another’s land for the purpose of taking a particular kind of action.

Question 9

Are easements in gross transferable?

Answer 9

Only those which are for economic purposes. Those for personal enjoyment are not transferable.

Question 10

What are the ways of creating an easement?

Answer 10

1) writing and signed by the holder of the servient estate if for less than one year; 2) by implication; or 3) by prescription.

Question 11

Easement by Prescription

Answer 11

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.

Question 12

What is the scope of an easement absent limiting language?

Answer 12

That the easement accounts for present and future needs of the dominant estate.

Question 13

Who is responsible for repairs to the easement?

Answer 13

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.

Question 14

How can an easement be terminated?

Answer 14

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.

Question 15

How can an easement by prescription be terminated?

Answer 15

There must be an adverse, continuous interruption of the use of the prescriptive period.

Question 16

License

Answer 16

a privilege to go onto the land of another which is revocable by the grantor. Licenses are not interests in land.

Question 17

A failed attempt at creating an easement results in a ___________.

Answer 17

license

Question 18

When might a license become irrevocable?

Answer 18

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.

Question 19

Profit

Answer 19

an entitlement to the holder of the profit to take resources from the servant estate.

Question 20

What is impliedly present in a profit?

Answer 20

An easement to enter the land for the purpose of extracting the profit.

Question 21

Real Covenant

Answer 21

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.

Question 22

What is required for a real covenant to run with the burdened land?

Answer 22

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.

Question 23

What is required for a promisee’s successor to have the power to enforce a real covenant?

Answer 23

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.

Question 24

Equitable Servitude

Answer 24

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.

Question 25

What are the damages for real covenants?

Answer 25

Money damages

Question 26

What are the damages for equitable servitudes?

Answer 26

Injunction

Question 27

How is an equitable servitude created?

Answer 27

A promise in writing which satisfies the statute of frauds.

Question 28

Must a negative equitable servitude be written?

Answer 28

Not necessarily, if they can be implied from a common scheme for development of a residential subdivision.

Question 29

Where in a residential subdivision some deeds have express negative servitudes, and others do not, what should one infer?

Answer 29

That there is an implied negative equitable servitude in one’s deed.

Question 30

For an owner of land to be bound by an implied negative equitable servitude, what must be shown?

Answer 30

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.

Question 31

What must be present in order for a successor owner of land to be bound by a negative equitable servitude?

Answer 31

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.

Question 32

What are the defenses to enforcement of a negative equitable servitude?

Answer 32

There are several: unclean hands, estopplel, laches or changes in the neighborhood.

Question 33

Unclean Hands

Answer 33

the one trying to enforce a negative equitable servitude is violating a similar restriction on his own land.

Question 34

When might someone be estopped from enforcing a negative equitable servitude?

Answer 34

Where the benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived.

Question 35

Laches

Answer 35

the benefitted party fails to bring suit to enforce the servitude within a reasonable time.

Question 36

How can a servitude be terminated?

Answer 36

By a written release, merger of the parcels, or condemnation of the burdened property.

Question 37

Where an easement is made redundant by a change in the property, is it extinguished?

Answer 37

No. It remains.

Question 38

In an easement by prescription, is exclusive possession by the user of the land necessary?

Answer 38

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.

Question 39

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?

Answer 39

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.

Question 40

What does it mean that an easement has been surcharged?

Answer 40

the easement’s legal scope has been exceeded.