IV. Rights in the land of another - Easements, profits, covenants, and servitudes

Question 1

Easements

Answer 1

The holder of an easement has the right to use a tract of land (called the servient tenement) for a special purpose, but has no right to possess and enjoy the tract of land

Affirmative Easements
Affirmative easements entitle the holder to enter upon the servient tenement and make an affirmative use of it

Negative Easements
entitle the privilege holder to compel the possessor of the servient tenement *to refrain from engaging in activity *

Example: A owns Lot 6. By written instrument, he stipulates to B that he will not build any structure upon Lot 6 within 35 feet of the lot line. B has acquired a negative easement in Lot 6.

Question 2

Easement Appurtenant

Answer 2

An easement is deemed appurtenant when the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land.

1. must be two tracts of land.
   
   1. dominant tenement, which has the benefit of the easement.
   2. servient tenement, which is subject to the easement right.

Question 3

Creation of Easements

Answer 3

Express Grant
Because an easement is an interest in land, the Statute of Frauds applies. Therefore, any easement must be memorialized in a writing that is signed by the grantor

Express Reservation
An easement by reservation arises when the owner (of a present possessory interest) of a tract of land conveys title but reserves the right to continue to use the tract for a special purpose after the conveyance.

Implication
created by operation of law rather than by written instrument. It is an exception to the Statute of Frauds. There are only three types of implied easements: (i) an intended easement based on a use that existed when the dominant and servient estates were severed, (ii) an easement implied from a recorded subdivision plat or profit a prendre, and (iii) an easement by necessity.

Question 4

Easement Implied from Existing Use (“Quasi-Easement”)

Answer 4

An easement may be implied if, prior to the time the tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part” and a court determines that the parties intended the use to continue after division of the property.

Question 5

Easements Implied Without Any Existing Use

Answer 5

Subdivision Plat
When lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets in order to gain access to their lots. These easements continue to exist even if the public easements held by the city or county in the streets are later vacated.

Profit a Prendre
When a landowner grants a profit a prendre to a person to remove a valuable product of the soil (e.g., grass, asphalt, ore, etc.), the holder of the profit also has an implied easement to pass over the surface of the land and to use it as reasonably necessary to extract the product.

Question 6

Prescription

Answer 6

To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period.

Question 7

Terminatoin of Easements

(SUPRANCE)

Answer 7

1. Stated conditons
2. Unity of ownership (merger)
3. Prescription
4. Release
5. Abandonment
6. Necessity
7. Condemnation and destruction
8. Estoppel

Question 8

License

Answer 8

license is not an interest in land. It is merely a privilege, revocable at the will of the licensor.

• personal to the licensee and therefore not alienable
• failed attempt to create an easement results in license
• Irrevocable license (1) estoppel (2) license coupled with interest

Question 9

Profits

Answer 9

Right to take resources from another’s land

1. writing required
2. same as easement
3. surcharge

Question 10

Real Covenants

Answer 10

written promise to do something on the land or a promise not to do something on the land.

• run with the land (subsequent owners may enforce/be burdened by the covenant)

Question 11

Equitable Servitude

Answer 11

1. created by covenants contained in a writing that satisfy SOF.
2. exception: negative equitable servitudes - implied from common scheme for development of a residential subdivision
   
   1. implied if at the time of sale of division began, developer had plan that all will be subject to restriction.
   2. evidenced by (i) recorded plat, (ii) general pattern, (iii) oral representations
   3. Notice (actual, inquiry, record)
3. Requirement for burden to run
   
   1. intent
   2. actual, inquiry, or record notice
   3. covenant touches and concern
4. Requirement for benefit to run
   
   1. intent
   2. **touches and concerns **

Question 12

Equitable defense to enforcing equitable servitude

Answer 12

1. unclean hands
2. acquiesced
3. estoppel
4. laches
5. neighborhood changed significantly