Easements + Servitudes Flashcards
Easement Appurtenant vs. Easement In Gross
Appurtenant = benefits the owner in use of another tract if land (said to be appurtenant in the benefitted land)
Gross = Gives right to servient land but does not benefit the owner in use or enjoyment of his own land.
Ex: putting Pepsi billboards on Blueacre, but Pepsi doesn’t benefit from the use of the land
Affirmative vs. Negative
Affirmative = gives the right to enter property and do something (drive across, get to the beach, put up a billboard)
Negative = give the easement owner a right to prevent the servient estate from doing something (blocking a view). You often see these with homeowner associations (color of house, yard ornaments)
Servient vs. Dominant
Dominant = land that gets the use right/benefit (better enjoyment. Ironically, usually the smaller estate between the two.
Servient = suffers the burden, usually adjacent
Grant vs. Reservation
Cai: It’s silly and doesn’t matter for our purposes of class.
Grant: Created when property is sold/transferred and created in a document.
Reservation: Hold on to an easement for yourself when you transfer land.
True or false: All servitudes do not run with the land
False, they DO run with the land, ownership passes with the soil
True or false: All servitudes do not run with the land
False, they DO run with the land, ownership passes with the soil. “Sinks its tentacles” into the land and sticks with it.
What are the types of negative easements?
1) prevent blocking of light
2) prevent blocking of air
3) prevent blocking of view
4) prevent flow of artificial stream
5) prevent blocking of sub adjacent or lateral support
H: A owns a FSA in two adjacent parcels, Blackacre (A’s home) and Greyacre (a vacant lot). From the second story of A’s home, there’s a view to a lake. A wants to sell Greyacre but also wishes to protect the view. A agrees to sell Greyacre to B and eventually conveys title to B pursuant to a deed that expressly states: “B, his successors, heirs, and assigns shall not allow construction on Greyacre of any building or structure that exceeds 12 feet in height”
After the A-B deed is recorded, B in turn conveys Greyacre to C. C begins construction of a 30-ft high home that will blog the view.
Can A recover damages from C for breach of the covenant?
A, the original promisee, is seeking to enforce its benefit. The only issue is whether the covenant can be enforced against C, B’s successor.
The question is… does the burden of the covenant run with C?
1) Must be in writing - yes
2) Intent of original parties to bind their successors - yes
3) Touch and concern - yes
4) Horizontal privity -? There was never simultaneous interest between A-B, so no
5) Vertical privity - yes
6) Notice - yes
A cannot recover against C for $
What is an easement?
An easement is a property right that enhances your enjoyment of you land even more usable/valuable.
An easement = private land use controls created by private individuals through private agreements.
List the types of easements
Express Easement, Easement Implied from Prior Use, Prescriptive Easement, Implied Easement by Necessity, Easement by Estoppel
True or false: Express easements can be made only one way
False. Express Easement:
Can be created in 3 ways (that satisfy the statute of frauds):
1) Grant: Create or memorialize a new easement and give it to somebody. Goes to the dominant estate owner.
2) Reservation: Create a new easement that wasn’t memorialized in writing before as an independent interest by referring to it in a deed to another person.
Goes to someone else by mentioning the new easement.
3) Exception: When you have an easement that already existed but maybe you lost the document that created it, or you want to change its terms, etc. You preserve the easement in an exception. Goes to burdened new estate owner, mentioning existing easement.
What are the elements to Easement by Estoppel?
1) Reliance
2) Change of position
3) Some investment or improvement as a result of that change of position
4) Alternatives
5) Promise
6) Resulting injustice (unjust enrichment)
7) Foreseeable reliance
What are the two types of Implied Easements?
1) Implied from Existing Use:
+ Before a tract is DIVIDED, there was a use on the servient estate that was reasonably necessary for the use and enjoyment of the dominant estate.
+ Prior common owner of the whole parcel.
+ Must be in existence at time of division; can only be an easement appurtenant.
+ Do not recognize implied easements in gross.
+ Existing use was continuous, apparent, and reasonably necessary.
2) Implied by Necessity:
+ Implied only if there was strict necessity: For example, unequivocally land-locked at the time the tract is divided.
+ The parties must intend that the use will continue.
+ Terminates when necessity ends: They are determinable easements, and they will end the moment the strict necessity goes away.
True or False: A prescriptive easement has to follow all of the AP elements
True! Has to satisfy all of the elements of adverse possession:
+ Open and notorious use
+ Adverse and under a claim of right
+ Continuous and uninterrupted use
+ For the statutory period
–> Tacking is allowed, as is seasonal use
–> PE: right to use to part of the land
–> AP: right to title of the whole land
What are factors to look at when determining the scope and intent of an easement?
+ Terms of express easement
+ Parties intentions
+ Purpose: how the land is used (increase or decrease in the burden?)
+ If the use is reasonably foreseeable
+ Changes necessary to give effect to purpose of easement if circumstances have changed
