Property: Non-possessory estates Flashcards
non-possessory estates generally
Non-possessory estates usually entitle the holder to use another’s property, but not possess it. The law recognizes several non-possessory estates.
A. Easements
B. Licenses
C. Profits
D. Covenants/Equitable Servitudes
Easements
An easement is a non-possessory interest that usually entitles its holder to some use or enjoyment of another’s land (the “servient estate”).
2 kinds:
negative and affirmative
Negative easements
A negative easement entitles the holder of the easement to prevent another landowner from doing something on her own land. Negative easements must be created expressly in writing; there are NO negative easements by oral agreement, implication, necessity, or prescription.
Even if there is an express written grant, only five types of negative easements are recognized. These are easements in which the servient landowner agrees not to interfere with the dominant landowner’s
a. Access to light
b. Access to air
c. Lateral and subjacent support
d. Stream water from an artificial flow
e. Access to view (possibly a minority view)
Negative easements closely resemble restrictive covenants.
Affirmative easements
An affirmative easement entitles the holder to go on to the servient land to do some act. Affirmative easements are far more common than negative easements.
a. There are two types of Affirmative Easements:
i. Easement Appurtenant: An easement that benefits a neighboring parcel of land (i.e., the dominant estate), such as a right to cross the servient estate to gain access to the dominant estate. The law prefers easements appurtenant, so in the event of ambiguity, courts will construe an easement as appurtenant rather than in gross.
ii. Easement in Gross. An easement that is personal or commercial in nature that does not directly benefit a neighboring parcel.
Transferability of easements
i. Easement Appurtenant: In an easement appurtenant, the ownership of the easement is tied to the ownership of the dominant estate. Thus, the benefit of an easement appurtenant passes automatically to the successors of the dominant estate. In addition, the burden passes automatically to the successors of the servient estate, unless the successor is a BFP without notice of the easement.
An easement appurtenant cannot be transferred independently of the dominant estate (except to the servient landowner).
ii. Easement in Gross: Such easements are personal to the easement holder; there is no dominant estate. The common law prohibited transfer of an easement in gross. Under modern law, easements in gross that are commercial in nature (e.g., utility easements) are transferrable.
five ways to create an affirmative easement:
i. By Deed of Grant or Reservation: a deed of easement must be in writing and signed by the party to be charged, regardless of cost or (probably) duration
ii. By Implication (Quasi-Easement): occurs when (1) property is divided (i.e., common ownership at some point in the past), (2) there was readily apparent use (e.g., path, driveway) prior to the division; and (3) the easement is at least reasonably necessary to the enjoyment of one of the parcels.
ii. By Necessity: occurs when (1) property is divided (i.e., common ownership at some point in the past), (2) a parcel is landlocked because of the division, and (3) an easement to cross the servient estate (for access and/or utilities) is at least strictly necessary for enjoyment of the dominant estate.
unlike a Quasi-Easement, the servient estate need not have been used prior to the transfer
the owner of the servient estate has the right to locate the easement, as long as the location is reasonably convenient
iv. By Prescription: an easement may be acquired by prescription if the easement holder’s use is:
Actual
Open and notorious (i.e., visible)
Hostile (without permission—the majority assumes no permission)
Continuous and uninterrupted (seasonal may suffice)
Exclusive (i.e., non-public)
For the statutory period for prescriptive easements
The rules for “disability” and “tacking” are the same for adverse possession and prescriptive easements.
v. By Estoppel: an easement by estoppel may arise if a licensee makes substantial improvements to the right-of-way with the knowledge or preferably consent of the servient landowner; in such case, the servient landowner is estopped from terminating the license.
The holder of the easement may not overuse the easement. There are two types of overuse:
- any unreasonable burden that was not foreseeable at the time the easement was created
if the dominant estate is subdivided, each subdivided lot has a right to use the easement appurtenant, unless the increased burden is unreasonable (e.g., use by 4 subdivided lots may be permitted, but 40 lots are probably excessive)
- use of the easement for property other than the dominant estate
The servient landowner may sue to enjoin such excess use or for damages, but overuse does not give the servient landowner the right to
Terminate or block the easement
Termination of Easement
i. Estoppel: The holder of the easement orally tells the servient landowner that he no longer intends to use the easement and the servient landowner reasonably relies on such statements to her detriment (e.g., builds a garage across the driveway or puts up a fence)
ii. Necessity Ends: If the easement was created solely out of necessity (i.e., no express grant), the easement ends when the necessity ends
If an easement is granted by deed to deal with a necessity, the easement does not end when the necessity ends (unless the deed so provides).
iii. Destruction of the Servient Estate: If the easement is in a structure (e.g., right to use stairs), involuntary destruction of the structure terminates the easement.
iv. Condemnation of Servient Estate by Government
However, the holder of the easement would be entitled to share in the condemnation award. The same rule applies to profits.
v. Written Release by the easement holder that satisfies the SOF
vi. Abandonment: Requires a physical act (e.g., removing railroad tracks) showing the intent of the holder to permanently abandon; mere words or nonuse—without a physical act—are insufficient
vii. Merger by Complete Unity of Title: servient and dominant estates end up in the same hands; in such event, the easement does not automatically re-start when the land is re-divided
for a merger to occur, the interests must be held in the same fashion; there would be no merger, for example, where the dominant estate was held in fee simple and the servient estate was acquired as a life estate or tenancy for years
viii. Prescription: an easement may be obtained by prescription and terminated by prescription or adverse possession (e.g., blocking the easement for the SOL period)
Licenses generally
A license is a privilege to enter another’s land for some specific purpose. It is not a property interest and thus does not have to be in writing. It is freely revocable, unless the license holder has detrimentally relied on the license (i.e., easement by estoppel) or has a license coupled with an interest (e.g., a license in a vendee to retrieve personal property, a license in a tenant to recover personal property after termination of a lease without a fixed duration, or a license in a remainderman to inspect for waste). As a general rule, licenses are not assignable (under modern law, licenses based on tickets are often assignable).
Profits (a/k/a/ profits à prendre):
An easement-like interest that allows its holder to come on to the servient estate to remove natural resources. The rules applicable to easements generally apply to profits.
But unlike easements, there is a constructional preference for profits in gross (commercial), and not profits appurtenant. There is also a constructional preference for non-exclusive profits.
Profits are assignable (and divisible) to the extent such assignments do not overly increase the burden on the servient estate (e.g., over burden is more likely to occur in non-exclusive profits).
A profit holder has an implied easement to enter the servient estate to gain access to the natural resources
Covenants and Equitable Servitudes (ES):
A covenant/equitable servitude is a promise by a landowner (the burdened estate) to a neighbor (the benefited estate) to do or not to do something on the burdened land.
The covenant is a contract and can be negative (i.e., the burdened landowner agrees not to do something on his land, such as operate a business) or affirmative (i.e., the burdened landowner agrees to do something on her land, such as maintain a fence or a common driveway).
Negative covenants are also known as “restrictive covenants” and are far more common than affirmative covenants.
Equitable servitudes
If the plaintiff is seeking equitable relief (e.g., an injunction or specific performance), then the question concerns an equitable servitude. Equitable servitudes are identical to covenants (i.e., they both require that the promise be in writing, that the parties intended it to run with the land, and that it touches and concerns the land); the only difference is the relief sought.
There is also a huge difference in enforceability: courts are far more likely to enforce an equitable servitude than they are to award damages for breach of a covenant because neither horizontal nor vertical privity is required to enforce an ES. The only significant issue is:
Whether the successor (who pays value) of the original burdened party (A1) had notice of the covenant when she acquired the land. Such notice may be acquired in several ways:
Actual notice
Inquiry notice (the neighborhood conforms to a common scheme)
Record or constructive notice (the majority requires that such notice be in the burdened party’s chain of title)
Implied Reciprocal Negative Servitudes:
In the case of a restricted subdivision, many courts will imply a negative servitude on a lot even though there is no writing creating the servitude on that lot.
If a developer subdivides land under a common scheme or plan, and places restrictions (e.g., residential use only) in almost all deeds, but then sells one to A without such restrictions, may the earlier purchasers (i.e., those with restrictions) enjoin A (who had no restriction in her deed) from violating the restriction? Yes, if two conditions are met:
i. when the sales began, the developer had a general scheme (e.g., residential development) that included A’s lot (e.g., a plat, map, sales brochure); and
ii. A had some form of notice of the restriction:
actual notice of the restriction
inquiry notice (the neighborhood conforms to the common scheme; it is all residential and A’s lot is in the middle; A should have known that the restriction exists)
record notice (majority requires that the notice be in A’s chain of title; the deeds of A’s neighbors (i.e., the prior owners) are not in A’s chain of title)
However, the developer may have filed subdivision plats or maps that are in A’s chain of title if A’s title references the plat or map
Implied Reciprocal Negative Servitudes apply only to negative covenants
Defenses to Enforcement of Equitable Servitudes:
Changed Circumstances: For this defense to work, the entire subdivision must have changed; changes outside the subdivision or piece-meal changes within the subdivision are insufficient. This defense rarely prevails.
Unclean Hands: The plaintiff has similarly breached the covenant.
Acquiescence: The plaintiff has acquiesced in breaches by others.
Estoppel: The plaintiff has led defendant to believe that plaintiff would not enforce the covenant and defendant has detrimentally relied on that promise.
Laches: Defendant was prejudiced by plaintiff’s delay.
