Rights in Another's Land (Covenants, Easements, Licenses, Fixtures, and Zoning) Flashcards
Running Covenants
A covenant that runs with the land is a promise that attaches to land. The covenantor promises to do (affirmative covenant) or refrain from doing something on his land (restrictive covenant).
Restrictive Covenants v. Defeasible Fees
Do not get the two mixed up. A restrictive covenant involves a promise regarding the use of the land and is not the title itself.
Elements for a Covenant to Run with Land (WIPTN)
Include:
- Writing
- Intent
- Privity
- Touch and Concern
- Notice
Running Covenant Elements: Writing
The covenant must be in a writing that satisfies the SOF.
Running Covenant Elements: Intent
- The covenant must include language that shows the parties’ intent for the covenant to run with the land.
- Covenant will typically state that covenantor promises “on behalf of himself and his heirs, successors, and assigns” to do or refrain from doing something on the land
Running Covenant Elements: Privity
Can involve either horizontal privity or vertical privity.
Horizontal Privity
The relationship that exists between the original covenantor and covenantee. Under the modern rule, horizontal privity is only required for the burden (to the land) and not for the benefit to run.
Ways of Proving Horizontal Privity
- In most jurisdictions, the requirement is satisfied by a conveyance of land between the covenantee and covenantor, which occurs by the same deed that includes the covenant.
- Horizontal privity may also exist when the covenant is created in a lease or in the transfer of an easement.
Vertical Privity
The relationship that exists between an original party to a running covenant and the successor in interest to the original party.
Proving Vertical Privity
The P must show that the successor “stepped into the shoes of” the original party. For the burden to land, the holder of the servient estate must transfer the entire interest to the new owner. (If A received FSA and conveys to B, B must receive FSA). For the benefit to the land, the dominant estate holder can transfer all or part of his interest.
Running Covenant Elements: Touch and Concern
A covenant must exercise direct influence on the occupation, use, or enjoyment of the premises. A benefit touches if it increases the value of the land. The burden touches if it decreases the value of the land.
Running Covenant Elements: Notice
The parameters of notice are determined according to the terms of the relevant recording statute.
Imposing the Burden of a Common Scheme: The First Lot With an Express Restriction
In the absence of an express restriction, the burden will not be imposed on a lot conveyed before the conveyance of the first lot with an express restriction.
Imposing the Burden of a Common Scheme: Obvious Burdens
The burden of a common scheme will be imposed on lots, regardless of express restrictions, if a common scheme was evident at the time of conveyance of those lots.
Termination of Covenants or Equitable Servitude
Include:
- merger
- written release
- abandonment
- estoppel
- changed circumstances.
Covenants v. Equitable Servitudes
Covenants when breached lead to an award of damages. Breach of Equitable servitudes lead to the granting of an equitable remedy, such as an injunction.
Equitable Servitude (TIN)
Is created with three elements:
- Touch and concern the land (the burden must run with servient estate while the benefit must run with the dominant estate)
- Intent- the writing must satisfy SOF
- Notice- the current owner of the servient estate took with notice (actual, constructive, or inquiry)
Implied Reciprocal Servitude
Where one owner sells lots with restrictions that benefit the land retained by that owner, after which the owner cannot violate the same restriction. The restriction becomes mutual, benefits that owner’s land, and the land sold.
Creation of Implied Reciprocal Servitude (CC&Rs)
- Look for a filed declaration containing the restrictions (covenants, conditions and restrictions)
- The SOF does not apply (since it is an implied right)
- Only applies to negative restrictions
Implied Reciprocal Servitude: Common Scheme or Plan
One way to impose a reciprocal servitude is by showing a common scheme or plan. Restriction must be part of a common scheme or plan for dev. of the area and the current owner takes with notice of the restriction. An implied reciprocal servitude is imposed on any lot that does not contain the restriction if a common scheme was evident at the time of the conveyance of those lots.
Important Factors to Show a “Common Scheme”
- A large percentage of lots expressly burdened (inquiry notice)
- Oral representation to buyers
- Statements in advertisements to buyers; or
- Recorded plat maps or other declarations.
Enforcement of Implied Reciprocal Servitude
Includes:
- The original grantor
- Any purchaser affected by the common scheme; or
- A condo or subdivision association for common land conveyed to it.
Termination of Covenants: Changed Circumstances
When the neighborhood or circumstances have changed so greatly that it no longer makes sense to enforce the restriction, the covenant will be terminated.
Property Owner’s Associations in Regards to Restrictive Covenants
A property owner’s association generally has standing to enforce a restrictive covenant.
Easement
An interest in the land of another. Can be affirmative or negative. Can be appurtenant or in gross.
Checklist for Easements
- Was an easement ever properly created? (what type was it?)
- What is the scope of the easement?
- Has the easement been terminated?
Affirmative v. Negative Easements
- An affirmative easement gives the holder the right to do something on the land of another.
- A negative easement gives the holder the right to prevent a landowner from doing something on his land (writing is always required).
Easements Appurtenant v. Easements in Gross
An easement appurtenant has a dominant estate (land that is benefitted by the easement) and a servient estate (land that is burdened by the easement).
An easement in gross only contains a servient estate (e.g. public utility easement).
Methods of Creating Easements
Include:
- Writing
- Implication
- Prescription
Express Easement
A writing that complies with the SOF.
Implied Easement
An affirmative easement may be created by implication either by prior use, necessity, or plat.
Implied Easement by Prior Use
Requires:
- Severance of title to land held in common ownership &
- The use giving rise to the easement was in existence at the time of the severance
- The prior use must have benefited the other portion of the land
- The use was apparent and could be discovered upon a reasonable inspection
- At the time of the severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract.
Implied Easement by Necessity
Requires:
- Severance of title to land held in common ownership; and
- Strict necessity for the easement at the time of severance
- A showing of prior use is not required.
Implied Easement by Plat
A purchaser who acquires a lot in a platted subdivision will generally acquire an implied private easement to use any streets or alleys shown on the plat.
Prescriptive Easement
An affirmative easement may be created by prescription (adverse use) which requires proof that use is:
- open and notorious
- actual
- continuous (traditional period is 20 years)
- hostile
- exclusive (but the user can share the easement with the owner)
Prescriptive Easement v. AP of Title
Remember that a prescriptive easement does not equate to adverse possession of legal title to a piece of realty.
Things that Can Not Be Acquired Via a Prescriptive Easement?
One cannot claim the right use the light and air (think about the the AP elements).
Scope of an Easement
If the language creating a written easement limits its use, that language will be enforced. But if there is no limiting language use is only limited by reasonableness.
