Real Property: Servitudes Flashcards
Easement
The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement
Affirmative Easement
Most easements are affirmative – the right to do something on servient land
Negative Easement
Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible
Must be expressly created by writing signed by the grantor – no natural or automatic right
Generally only recognized in four categories - LASS
L - light A - air S - support S - stream water from artificial flow (S - scenic view, minority states)
Easement Appurtenant
Benefits its holder in his physical use or enjoyment of his property
It takes two – this occurs when two parcels are involved: (1) dominant tenement: gets the benefit, and (2) servient tenenment: bears the burden
E.g., right of way across land
Easement in Gross
Confers upon the holder some personal or pecuniary advantage not related to his use or enjoyment of the land. Servient land is burdened, but no benefited dominant tenement.
E.g., right to place billboard, right to swim in another’s pond right to law power lands on another’s land
Easement and Transferability
(a) Appurtenant easement passes automatically with dominant tenement, regardless of whether it’s mentioned in the conveyance
(b) Appurtenant easement passes automatically with the servient tenement, unless the new owner is a bonafide purchaser without notice
(c) Easement in gross is not transferable unless it is for commercial purposes
Creation of Affirmative Easement
PING
P - by Prescription: satisfying elements of adverse possession (continuous, open/notorious use, actual, hostile)
I - by Implication: easement implied from existing use
N - by Necessity: landlocked setting
G - by Grant: for an easement to endure longer than one year, it must be in writing that complies with formal elements of a deed (deed of easement)
- If easement ended because of merger, does not automatically revive when land is re-separated. BUT can be:
(a) Implied from existing use if: (i) before a tract is divided, an apparent and continuous use exists on the servient part, (ii) the use is reasonably necessary for enjoyment of the dominant part, and (iii) a court determines that the parties intended the use to continue after the property was divided
(b) Any of the above
Easement Scope
Determined by terms that created it
Termination of an Easement
END CRAMP
E - Estoppel: servient owner materially changes his position in reasonable reliance on easement holder’s promise easement will not be enforced
N - Necessity: easements by necessity expire as soon as the need ends, unless it was created by express grant (in which case it continues)
D - Destruction: destruction of servient land, other than through willful conduct of servient owner
C - Condemnation of the servient estate by eminent domain
R - Release: a written release given by holder of easement to servient landholder
A - Abandonment: easement holder must demonstrate by physical action the intent to never use easement again
M - Merger doctrine: easement extinguished when title to easement and title to servient land become vested in the same person (if later separated, easement does not automatically reemerge)
P - Prescription: servient owner may extinguish easement by interfering with it in accordance with elements of adverse possession (COAH)
The License
A mere privilege to enter another’s land for a delineated purpose (e.g. ticket to an event)
Not subject to statute of frauds
Licenses are freely revocable at the will of the licensor, unless estoppel applies to bar revocation (e.g. licensee invested substantial money, labor, or both)
The Profit
Entitles its holder to enter the servient land and take from it the soil or some substance of the soil, e.g., minerals, timber, oil
Profit shares all easement rules
The Covenant: Definition
A promise to do or not to do something related to land. Unlike the easement because it is not the grant of a property interest, but rather a contract or promise regarding land
Negative Covenant / Restrictive Covenant
A promise to refrain from doing something related to land (e.g., I promise not to build for commercial purposes)
One tract is burdened, one tract is benefited
Affirmative Covenant
A promise to do something related to land (e.g., I promise to paint our common fence)
Covenant v. Equitable Servitude
Distinguish between the two on the bases of the remedy plaintiff seeks:
(a) Money damages – covenant
(b) Injunction –equitable servitude
Covenant: Elements for Burden to Run
WITHN
W - Writing: Original promise between A (burdened) and B (benefitted) must be in writing
I - Intent: A and B must intend that the covenant run
T - Touch and concern the land: must affect parties’ legal relations as landowners, and not simply as members of community at large (homeowners’ association fees and covenants not to compete n/a)
H - Horizontal and vertical privity:
(a) Horizontal: A and B must be in succession of estate (grantor-grantee, LL-T, mortgagor-mortgagee);
(b) Vertical: A and A1 must have non-hostile nexus (i.e., anything but adverse possession)
N - Notice: A1 must have notice of the promise when she took
Covenant: Elements for Benefit to Run
WITV
W - Writing: Original promise between A (burdened) and B (benefitted) must be in writing
I - Intent: A and B must intend that the covenant run
T - Touch and concern the land: must affect parties’ legal relations as landowners, and not simply as members of community at large (homeowners’ association fees and covenants not to compete n/a)
V - Vertical privity: Non-hostile nexus between B and B1
Equitable Servitude: Definition
A promise that equity will enforce against successors; it is accompanied by injunctive relief
Equitable Servitude: How to Bind Successors
WITNES
W - Writing: Original promise between A and B must be in writing
I - Intent: A and B must intend that the covenant run
T - Touch and concern the land: must affect parties’ legal relations as landowners, and not simply as members of community at large (homeowners’ association fees and covenants not to compete n/a)
N - Notice: Successor of the BURDENED land must have had notice when he took
E - Equitable
S - Servitude
Implied Equitable Servitude / General or Common Scheme Doctrine
The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant IF
(1) When the sales began, subdivider had a general scheme of developments that included D’s lot
(2) Defendant lot-holder had notice (AIR) of the promise in prior deeds
(a) A - Actual notice: D knew of the common restriction
(b) I - Inquiry notice: neighborhood conforms to the common restriction
(c) R - Record notice:
Equitable Servitudes: Defenses to Enforcement
Changed Conditions: changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed
Mere pockets of limited change is never good enough
Adverse Possession: Definition
Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title
Adverse Possession: Elements
COAH
C - Continuous: uninterrupted for the statutory period
O - Open and Notorious: possession the usual owner would make under the circumstances
A - Actual: actual use giving exclusive possession
H - Hostile: possessor doesn’t have owner’s consent
**Possessor’s subjective state of mind is irrelevant
Adverse Possession: Tacking
One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is privity, which is satisfied by any non-hostile nexus (e.g., contract, blood)
Tacking is not allowed where there has been ouster
Adverse Possession: Disabilities
Statute of limitations will not run against a true owner who is afflicted by a disability at the START of the adverse possession
Common disabilities include insanity, infancy and imprisonment
Easements and Marketable Title
Generally, easements are considered encumbrances that render title unmarketable; so, if an easement is not provided for in the contract, it usually renders seller’s title unmarketable
Exception: a beneficial easement that was visible or known to the buyer does not constitute an encumbrance, and therefore does not render title unmarketable
Adverse Possession: Future Interests
The statute of limitations does not run against the holder of a future interest (e.g., a remainder) until that interest becomes possessory, because the holder of the future interest has no right to possession (and thus no cause of action against a wrongful possessor) until the prior present estate terminates
