Non-Possessory Interests Flashcards
What is the duration of an easement?
It is presumed to be perepetual unless the grant specifically limits the interest
How is an easement appurtenant transfered?
The easement passes with the transfer of the benefited land, whether or not it is mentioned in the conveyance.
The burden also passes automatically with the burdened land unless the new owner is a BFP with no actual or constructive notice of the easement.
It cannot be transfered apart from the dominant estate.
When is an easement in gross transferable?
It is transferable when it serves an economic or commercial interest.
It is not transferable when it is for the holder’s personal interest.
How does an easement by reservation arise?
Grantor conveys title to land but reserves right to continue to use tract for a special purpose
NOT possible to reserve for a third party, only for grantor
When may an easement be implied from existing use?
- Single tract divded
- Apparent and continuous use existed on the servient part before division
- Easement is reasonably necessary for enjoyment of the dominant part
When may an easement be implied without any existing use?
- Subdivision plats – if the map shows streets leading up to the lots, buyers of the lots may use the streets to access their lots
- Profits – if have right to extract, have implied easement for crossing surface of land to extract it
When is an easement by necessity created?
When a landowner sells a portion of his tract and the division deprives one lot of access to a public road or utility line
Owner of servient parcel has right to locate the easement
Requirements for an easement by prescription
- Open and notorious
- Adverse
- Continuous
- Statutory period (MI = 15 years)
What is the scope of an easement?
Unless specified, it is assumed that the easement was intended to meet both the present AND reasonable future needs of the dominant estate
What happens if an easement is misused or overused?
It is NOT terminated. Rather, the servient owner is entitled to an injunction.
Who has the duty to make repairs to the easement?
If the holder is the sole user: full duty to repair
If both parties use it: repair costs apportioned
How is an easement by prescription terminated?
Adverse, continuous interruption of the use for the prescriptive period (MI = 15 years)
How is an easement by necessity terminated?
It terminates when the necessity ends
What is required for termination of an easement by merger?
- Same party acquires both the easement and the servient estate
- Unity must be complete (duration of servient estate must be equal to or longer than the duration of the dominant estate)
What is required for termination of an easement by abandonment?
Holder demonstrates by physical action an intent to permanently abandon
Also satisfied by oral expression + long period of nonuse
How does a license differ from an easement?
It is a privilege, rather than an interest in land
It is revocable at will of the licensor
It is inalienable (attempt to transfer –> automatic revocation)
What is a profit?
It entitles the holder to take some resources from the servient estate
It has an implied easement entitling holder to enter the servient estate to remove the resources
What is a surcharge?
Misuse that overly burdens the servient estate
What is a real covenant?
A written promise to do something or not do something that runs with the land at law
What is required for the burden of a real covenant to run?
- Intent for it to run
- Notice (protects purchasers for value only)
- Horizontal privity (promisor and promisee shared some interest in the land independent of the covenant at the time of formation)
- Vertical privity (successor has entire durational interest that original had)
- Touch and concern (affects use of that parcel of land)
Requirements for the benefit of a real covenant to run
- Intent
- Vertical privity (ANY succeeding possessory estate may enforce)
- Touch and concern
Note: if no HP, can only sue the promisor, not the promisor’s successors
What is the remedy for breach of real covenant?
Money damages
How are real covenants and equitable servitudes terminated?
- Written release
- Merger
- Condemnation of burdened property
What is the remedy for breach of an equitable servitude?
Injunction
What is an equitable servitude?
A covenant that can be enforced against assignees of the burdened land who have notice of the covenant, whether or not it runs with the land at law
How are equitable servitudes created?
Usually with a writing that satisfies SOF
Exception: common scheme for development can lead to implied negative equitable servitudes
When are reciprocal negative servitudes implied?
At the time that sales in a subdivision began, developer had a plan that all parcels would be subject to the restriction
Can be evidenced by:
- Recorded plat
- General pattern of restrictions; OR
- Oral representations to early buyers
When does the burden of an equitable servitude run?
- Intent
- Actual, inquiry, or record notice
- Touch and concern
When does benefit of an equitable servitude run?
- Intent
- Touch and concern
What are the defenses to enforcement of an equitable servitude?
- π has unclean hands
- π has acquiesced in a violation of the servitude by one burdened party
- estoppel: π’s actions –> reasonable person would believe covenant was waived or abandoned
- π fails to bring suit w/in a reasonable time (laches)
- changed neighborhood conditions make enforcement inequitable
