Property - Servitudes Flashcards
Three Forms of Servitudes
- Easements - grant of a nonpossessory property interest that entitles holder to some form of use or enjoyment of another’s land (servient tentement).
- Real Covenants:
- Equitable Servitudes
Affirmative Easement: (Method of Creation/Parties Bound/Remedies)
[Right to do something on servenient land]
Method of Creation: PING
(i) Prescription (COAH)
- Continuous use for statutory period
- Open & Notorious
- Actual use
- Hostile Use (w/o consent)
(ii) Implication: (Previous Use)
(a) Previous use was apparent and
(b) Parties expected that it would continue because it was REASONABLY NECESSARY to the dominant land’s use.
(ii) Necessity: division of a tract deprives one lot of means of access out. Must be reasonably necessary. (MA –> Strict necessity)
(iv) Grant: writing signed by grantor
Parties bound:
- Easement appurtenant is transferred automatically with dominant tenement. Burden transfers unless BFP doesn’t have notice.
- Easement in gross for commercial purpose is assignable.
Remedy: Injunction or Damages
Negative Easement (Definition/Method of Creation/Remedy)
Prevents servient landowner from doing something that would otherwise be permissible.
Generally only recognized for LASS: Light, Air, Support, Stream Water from artificial Flow
Minority view: Easement for scenic view
Method of Creation: Only by writing signed by grantor
Termination of an Easement
END CRAMP
(a) Estoppel - Servient owner materailly changes position in reasonable reliance on easement holder’s assurance that it won’t be enforced.
(b) Necessity: Expires as soon as need ends if easement by necessity.
(c) Destruction of servient land except by willful conduct of servient owner.
(d) Condemnation by Eminent Domain
(e) Release - A written release
(f) Abandonment - physical action of easement holder demonstrating intent to abandon.
(g) Merger
(h) Prescription
- Continuous Interference
- Open & Notorious
- Actual
- Hostile to Easement Holder
Real Covenant (Definition/Creation/Remedy)
Promise to do or not to do something. Not a grant of property interest, but rather a contractual limitation.
Remedy: Damages
Method of Creation: Writing Signed by Grantor
Elements Necessary for Burden of a Real Covenant to Run
WITHN
(i) Writing - Promise must be in writing between original parties
(ii) Intent - Original parties intended the covenant to run. (Courts generous)
(iii) Touch and Concern the Land - effect use in their capacity as landowners
(iv) Horizontal and Vertical Privity
Horizontal - nexus between original parties, requires succession of estate. [Hard to establish]
Vertical - Non-hostile next between subsequent parties (contract, devisble, descent)
(v) Notice of the burden to subsequent party
Elements Necessary for Benefit of a Real Covenant to Run
WITV
(i) Writing
(ii) Intent between contracting parties
(iii) Touch and Concern – affects parties as landowners
(iv) Vertical Privitiy
Equitable Servitude (Definition/Creation/Remedy
Promise that EQUITY will enforce against successors;
Remedy: Injunction
Creation:
(i) Writing signed by grantor
(ii) Implied Equitable Servitude - common scheme doctrine (reciprocal negative servitude) [Majority View]
Residential restriction contained in prior deeds covenyed by common grantor will bind subsequent deeds not contain the restriction if
(a) Common scheme
(b) unrestricted lot holders had notice (actual/inquiry/record notice)
Minority view: Not held to servitude unless expressly agreed upon in deed
Elements necessary for Equitable Servitude to Bind Successors
WITNES
(i) Writing
(ii) Intent
(iii) Touch and Concern
(iv) Notice - Successors of the burdened land had notice of the promise
PRIVITY NOT REQUIRED
Equitable Defense to Enforcement of Equitable Servitudes
Changed Conditions: Release because circumstances have changed that affect the entire area.
Mere pockets of changes not enough.
Adverse Possession (Elements)
Possession ripens into tile if:
Continuous: Uninterrupted use for statutory period (MA - 20 years)
Open and Notorious - sort of possesion that usual owner would make
Actual - Entry must be literal
Hostile - Possessor does not have the owner’s permission to live there.
Must be exclusive
Tacking OK if there is privity. Not allowed when outster.
Disability: Must be present at start of adverse possession to toll SoL.
License (Definition/Continuation)
Mere privilege to enter another’s land for a defined purpose.
Not subject to Statute of Fraud.
Freely revocable unless estoppel applies. Estoppel when licensee has made substantial investment in reasonable reliable on the license’s continuation.
