Nonpossessory Rights in the Land of Another Flashcards
What are the types of nonpossessory rights in land?
Easements, covenants, servitudes and profits
What is an easement?
The right to use another’s tract of land for a special purpose without a right of possession.
How long are easements presumed to last?
Presumed to have perpetual duration unless grant specifically limits it
What are the types of easements?
Easements are
(1) either affirmative or negative
(2) either appurtenant or in gross
What are affirmative easements?
Most easements are affirmative. They are the right to go onto the servient land and do something.
What are negative easements?
Negative easements are rare and entitle the holder to compel the owner of a servient tenement to refrain from doing something.. HIstorically this was only possible in the categories of light, air, support, and flow of an artificial stream. Now a negative easement is a restrictive covenant
What are easements appurtenant?
The holder of the easement is benefited in their physical use and enjoyment of their property. There must be two parcels: the dominant tenement deriving the benefit and the servient tenement bearing the burden.
How do easements appurtenant transfer?
Passes with the benefit of the land even if it is not mentioned in the conveyance
Passes with the burden unless the buyer is a BFP without actual or constructive notice of the easement
What is an easement in gross?
The holder acquires a right to use the servient tenement without regard to their possession of another tract of land.
When are easements in gross transferable?
For an easement for the holder’s personal benefit — not transferable
For an easement for commercial interest, it is transferable
How are easements created?
PING
1) Prescription
(2) Implication
(3) Necessity
(4) Grant (express grant or reservation
How is an easement created by express grant or reservation?
The statute of frauds requires easements of a duration of more than a year (remember they are presumed to be of perpetual duration!) to be in writing and comply with the formal requisites of a deed. A grantor may also create an easement by expressly reserving the right on conveyance of title
How is an easement created by implication?
This is an exception to SOF
It may be implied from existing use (a/k/a quasi-easement) if:
(1) prior to the division of a single tract
(2) an apparent and continuous use exists on the servient part
(3) that is reasonably necessary for the enjoyment of the dominant part
(4) and the court determines that the parties intended use to continue
How is an easement created by necessity?
Another version of quasi-easement
Landowner sells a portion of their tract and by this division deprives one lot of access to a public road or utility line
How is an easement created by prescription?
Analogous to adverse possession where the use is
(1) open and notorious
(2) adverse
(3) continuous and uninterrupted
(4) for the statutory period
Need not be exclusive, not applicable to public land
What is the general scope of an easement?
Absent specific limitation, it is assume that an easement is intended to meet a dominant tenement’s current and future needs. Overuse or misuse does not terminate the easement; the appropriate remedy is injunction against misuse
Who bears the duty of repair costs related to use of the easement?
The easement holder if the sole user, apportioned if the use is shared
How may easements be terminated?
(1) terms of contract
(2) Merger
(3) release
(4) abandonment
(5) estoppel
(6) prescription
(7) expiration of necessity
(8) condemnation and destruction
How is an easement terminated by merger?
If the same person acquires ownership of both dominant and servient tenements, the easement is destroyed and will not automatically be revived if divided again later. To merge, the unity of ownership must be complete (servient tenement must be of equal or longer duration than the dominant)
How is an easement terminated by release?
Deed of release from the holder of the easement to the owner of the servient tenement
How is an easement terminated by abandonment?
Holder demonstrates by physical action an intent to permanently abandon the easement. Nonuse and expressing a wish to abandon is not enough. Oral expressions plus period of nonuse may be
How is an easement terminated by estoppel?
If the owner of a servient estate changes position in reasonable reliance on representations or conduct by easement owner
How is an easement terminated by prescription?
Adverse, continuous interruption of the use for a prescriptive period
How is an easement by necessity terminated?
When the necessity expires
How is an easement terminated by condemnation and destruction?
Condemnation of servient estate extinguishes all easements (easement holder may or may not be entitled to compensation)
Involuntary destruction extinguishes
Voluntary destruction does not
What is a license?
A privilege to go on another’s land but unlike an easement is not an interest in land and is revocable at the will of the licensor. Personal to licensee and nontransferable (attempt to transfer results in revocation). A failed attempt at an easement usually results in a license?
Under what circumstances does a license become irrevocable?
(1) estoppel — licensee invests substantial amount of money or labor in reliance / becomes an easement by estoppel until licensee gets enough benefit to reimburse efforts
(2) license coupled with interest is irrevocable as long as the interest lasts
What are profits?
Entitle the holder of the benefit to take resources like timber, soil or minerals from the servient estate. All accompanied by easement entitling holder to enter the estate to remove the resources. All easement creation, alienation, and termination rules applicable to profits except that profits may be extinguished by surcharge (misuse overburdening the servient estate `
What are real covenants and equitable servitudes?
promise to do something or not do something on land. The remedy for RCs is at law (damages) and ESs in in equity (injunction). Determine the difference based on remedy sought
How do determine whether a covenant will bind or be enforceable by successors in interest?
Determine whether you are dealing with RC or ES/law or equity
Then determine first the burden side (harder to run than the benefit) then the benefit side
What is necessary for the burden of a real covenant to run?
(Does the burden of A’s promise to B run from A to A1)
Writing required (to be enforceable at all)
Intent
Touch and concern
Horizontal privity
Vertical Privity
Notice
What is necessary for the benefit of a real covenant to run?
(Does the benefit of A’s promise to B run to B1) Writing Intent Touch and concern Vertical privity
What is necessary for the burden of an equitable servitude to run?
Intent
Notice
Touch and concern
What is necessary for the benefit of an equitable servitude to run?
Intent
Touch and concern
What are the types of notice?
Actual
Inquiry (neighborhood visibly conforms to common restriction)
Record (public records should have advised the buyer)
What is horizontal privity?
Nexus between original promising parties - they must be in succession of estate (grantor/grantee, landlord/tenant, mortgagee/mortgagor). Must share an interest in lan d independent of the covenant
What is vertical privity?
Successor in interest to covenanting party must hold the entire durational interest/nonhostile nexus like a contract, devise or descent
What is touch and concern?
Related to parties’ interests in the land
How is a covenant terminated?
Written release
Merger of benefited and burdened estates
Condemnation of burdened property
*both RC and ES
What are the equitable defenses to enforcement of an equitable servitude?
Unclean hands (person seeking enforcement violating a similar restriction)
Benefited party acquiesced in violation
Estoppel — reasonable person would rely on conduct of benefited party to assume abandonment or waiver
Laches — did not bring in reasonable time
Neighborhood has changed so significantly that enforcement would be inequitable
How does a court treat a wall or common driveway between adjoining landowners?
As partially owned by each to the extent it rests on each property.
Implied mutual cross-easements of support (each can use and neither can unilaterally destroy)
How are party wall or common driveway agreements created?
Express creation must meet SOF but an irrevocable license can arise from detrimental reliance on parol agreement. Also by implication or prescription
When is an equitable servitude implied?
The common scheme doctrine allows the court to imply a reciprocal negative servitude to hold an unrestricted lot holder to an implied restriction if:
(1) when sales of lots began the subdivided had a general scheme of residential development that included the defendant’s lot [common scheme prong]
(2) the defendant lot holder had notice of the promise when it took possession (actual, inquiry, or record)
