Property - Servitudes, Land Conveyance, Water Rights Flashcards
An easement is the _____ of a ________ interest that entitles is hold to
grant; nonpossessory; some form of use or enjoyment of another’s land.
The land on which the easement resides (the land that “bears the burden”) is called the
servient tenement.
Most easements are (affirmative/negative).
affirmative
Negative easements are generally recognized in only four categories:
LASS(S) (L) light (A) air (S) support (S) stream water from an artificial flow (S) minority of states: scenic view
Negative easements can only be created _____ by a
expressly; writing signed by the grantor.
The two types of easements are
(1) easement appurtenant
(2) easement in gross
An easement appurtenant arises when the easement benefits its holder in
his physical use or enjoyment of his property.
An easement appurtenant requires ______ parcel(s) of land.
two.
The parcel of land that is benefited by the easement is called the
dominant tenement.
An easement is in gross it it gives its holder only
some personal or pecuniary advantage NOT related to his use or enjoyment of his land.
E.g., right to fish or swim in another’s pond, right to place a billboard on another’s land
An easement in gross requires ______ parcel(s) of land.
one.
An easement appurtenant _________ with the dominant tenement, regardless of whether
passes automatically; it is mentioned in the conveyance.
An easement is gross (is/is not) transferable unless it is for _______ purposes
is not; commercial
The four ways an affirmative easement can be created are
PING (P) Prescription (like adverse possession, only the requirements of exclusivity and continuity are relaxed) (I) Implication (N) Necessity (G) Grant
An easement to endure for more than one year must _________ that complies with ______.
be in writing; formal elements of a deed.
Called a “deed of easement”.
An easement is created by implication (also known as an easement implied from existing use) if
(1) the previous use was apparent
(2) the parties expected that the use would continue because it is reasonably necessary to the dominant tenement’s use and enjoyment
An easement is created by necessity in
a landlocked setting.
An easement of right of way will be implied by necessity if a grantor conveys a portion of his land with
no way out except over some part of the grantor’s remaining land.
An easement is created by prescription if
COAH - just like adverse possession
(C) continuous use for the given statutory period
(O) open and notorious
(A) actual use
(H) hostile use w/o servient tenement owner’s consent
The scope of an easement is determined by
the terms of the grant or conditions that created it.
The ways to terminate an easement are
END CRAMP (E) Estoppel (N) Necessity (D) Destruction of the servient land (C) Condemnation of the servient estate (R) Release (A) Abandonment (M) Merger/unity of ownership (P) Prescription
An easement is terminated through estoppel when
the servient owner materially changes position in reasonable reliance on the easement holder’s assurance that the easement will not be enforced
An easement is terminated by necessity if
the easement was created by necessity and the need ends.
**Unless an easement attributable to a necessity was created by an express grant.
An easement is terminated by destruction if
the servient land was destroyed other than through the willful conduct of the servient owner.
An easement is terminated by condemnation through
eminent domain.
An easement is terminated by release if
the easement holder gives the servient owner a written release.
An easement is terminated by abandonment if
the easement holder demonstrates by PHYSICAL ACTION the intent to never use the easement again.
**This must be very apparent, words alone are NOT enough.
An easement ______ be terminated by long periods of non-use.
cannot.
An easement is terminated through merger/unity of ownership if
title to the easement and title to the servient land become vested in the same person AND the duration of the servient estate is equal to or longer than the dominant estate.**
**E.g., if the same person owns the servient tenement as a life estate and the dominant tenement as a fee simple, merger does NOT attach.
An easement is terminated by prescription if
the servient owner interferes with the easement in accordance with the elements of adverse possession (COAH).
**Look for the servient owner placing obstacles that make it impossible for the easement to be used.
A license is
a mere privilege to enter another’s land for a delineated purpose.
Licenses _______ subject to the statute of frauds.
are not.
Licenses are _____ removable unless
freely; estoppel applies to bar revocation
Estoppel will apply to bar revocation of a license only when the licensee has
invested substantial money or labor or both in reasonable reliance on the license’s continuation.
An oral grant of an easement that violates the Statute of Frauds is treated as a
freely revocable license.
**This is the “neighbors talking at the fence” classic exam scenario.
Tickets to shows create
freely revocable license.
A profit is
an entitlement to enter the servient land and take from it the soil or some substance of the soil, like minerals, oil, or timber.
A profit shares all the rules of
easements.
A convenant is a
promise to do nor not do something related to land.
The difference between covenants and easements is that covenants
are not a grant of a property interest, but instead a CONTRACTUAL limitation or promise regarding land.
Negative covenants are also called
restrictive covenants.
Covenants can be (affirmative/negative/both)
both affirmative or negative.
The difference between a covenant and an equitable servitude depends on
the basis of the remedy plaintiff seeks.
$$ - covenant, injunction - equitable servitude
If a plaintiff is seeking money damages, the promise regarding land is treated as a (covenant/equitable servitude).
covenant.
If a plaintiff is seeking an injunction, the promise regarding land is treated as a (covenant/equitable servitude).
equitable servitude
In covenant parlance, one tract is ______ by the promise and another is ______.
burdened; benefited
A covenant runs with the BURDENED tract and is capable of binding successors if
WITHN (W) Written promise (I) Intent - original parties intended that the covenant would run** (T) Touch and concern the land (H) Horizontal AND Vertical Privity (N) Notice
**Courts are generous in finding requisite intent
A covenant or equitable servitude “touches and concerns the land” if the promise
affects the parties’ legal relations as landowners.
**Covenants to pay money to be used in connection with the land (like HOA fee) and covenants not to compete touch and concern the land.
Horizontal privity refers to the nexus between the ________ parties and requires that they be in
original; succession of estate.
For the original parties to have been in succession of estate, they must have been one of only three possibilities:
GLM
(1) grantor-grantee
(2) landlord-tenant
(3) mortgagee-mortgagor
**This is very hard to establish and is a likely reason that many covenants don’t run.
Vertical privity refers to the nexus between
successive parties.
Vertical privity requires some _________ nexus and will only be absent if a successor acquired her interest through
non-hostile; adverse possession.
The “notice” requirement for covenants and equitable servitudes to run with the land requires that the
successor had notice of the promise when she took.
A covenant runs with the BENEFITED tract and grants standing to successors if
WITV (W) Written promise (I) Intent of original parties to run with the land (T) Touches and Concerns the land (V) Vertical privity
**Note the absence of horizontal privity and notice.
An equitable servitude runs with either the burdened OR benefited tract if
WITNes
(W) Written promise
(I) Intent of original parties to run with the land
(T) Touches and Concerns the land
(N) Notice to successors of BURDENED land
A court will imply a reciprocal negative servitude under the “general or common scheme” doctrine if
(1) a subdivider had a general scheme of residential development which included the defendant’s lot
(2) the defendant had notice of the promise contained in prior deeds
The three forms of notice for the “general or common scheme” doctrine are
AIR
(A) Actual
(I) Inquiry
(R) Record
Inquiry notice applies where
the neighborhood conforms to the common restriction and if the party had inquired they would have found out.
Record notice applies where
the buyer should have known based on publicly recorded documents.
There is a split of authority over record notice:
(1) some courts say that a buyer has record notice of deeds transferred by a COMMON GRANTOR
(2) other courts do NOT impute record notice through the common grantor theory
The only equitable defense to enforcement of an equitable servitude is the ________ doctrine.
changed conditions
Under the changed conditions defense to an equitable servitude, the changed circumstances must be
so pervasive that the entire area has changed.
**The entire area must be basically changed b/c courts want to avoid a “domino” effect.
An attempt to convey an easement appurtenant apart from the dominant tenement is
ineffective.
A bonafide purchaser of a servient parcel that does not have notice of the easement takes
free and clear of the easement.
