Rule Statements COPY Flashcards
Servitude
A servitude in real property is a legal right that allows a person or entity to use another person’s property for a specific purpose. An imposition on one’s land by agreement or statute that requires a landowner act, or restrict their actions.
5 Types of servitudes
Some types of servitudes are (1) easements, (2) profits, (3) licenses, (4) real covenants; which are covenants that run with the land, and (5) equitable servitudes.
Servitude examples
A right to do some act on another person’s land, such as cross the land to reach a parcel not adjacent to a road, or a right to fish, hunt or harvest on their land. A right to enter onto someone’s land and remove something attached to the land such as trees, oil, gas, water, or minerals. A right to restrict an owner from using her land in some way such a view obstruction or for commercial purposes. A right to compel an owner to perform some act on her own land (e.g., maintain a fence). A right to compel an owner to pay money to maintain certain facilities such as lawn care, fencing maintenance, a development swimming pool or workout room. (This developed with HOA’s)
Easement
An easement gives a person the right to use another’s land. It does not grant possessory or ownership interest, but interest only for a particular use. A right or restriction in land use
Affirmative/Positive easements
Generally created with a deed but can also be created by a grant, in a contract, by implication, or necessity. SOF must be met when writing a deed, which usually indicates land ownership, but a “deed of easement” indicates only the easement is “owned.
Negative easements
Easement holder compels the servient owner to refrain from doing something they normally are allowed to do, restricting how the land can be used. Must be negotiated, created in a signed writing, and memoralized in an express grant signed by grantor. There are four types: (1) Support (underground parking structure or pool), (2) Light (tall structures blocking a smaller building, (3) Air (breeze dependent neighborhoods like Santa Cruz, (4) Man-made stream water flow (dams), and (5) scenic view (minority of states)
Easement appurtenant
An easement appurtenant involves two estates: the dominant estate (the benefited land) and the servient estate (the serving land). Commonly used for access (ingress and egress). Exists between two or more parties and two or more tracts of land. Generally created with a deed in order to “run with the land,” meaning future owners of either tenement don’t have to (or get to) agree or renew the easement
Easement in gross
Involves one parcel; the servient estate only which allows an easement holder access to the land for a particular purpose, such as electrical, cable wires, or underground piping. When created by deed or contract, both require writing due to SOF requirement on land sales. This doesn’t run with the land, meaning [ ], is unassignable and non-inheritable, unless for commercial purposes. Divisible so long as the servient estate is not overly burdened or the document granting easement disallows division.
Estoppel (license)
If a party to an agreement has invested time, energy or money into a license (did they change their position), the license may become irrevocable because the landowner would be unjustly enriched
Implied easements
Arises when an owner uses a part of his land to benefit another part of his land in an apparent and continuous way and then transfers one part of the land to someone else. Requires: (1) both dominant and burdened parcels were once commonly owned and part of an undivided tract and then the parcels were subsequently severed (modernly, some states do not require this element), (2) the claimed easement had apparent and continuous prior use so as to show it was intended to be permanent, and (3) at the time of severance, the easement was reasonably necessary for the use and normal enjoyment of the dominant estate. If the servient estate was used by a dominant estate for a reasonable length of time that it would indicate that it is effectively permanent, an implied easement is created
Merger doctrine
If the dominant and servient estates are merged by purchase by the same party, any implied easements or easements appurtenant are extinguished, and are not revived if the parcel is again divided
Easement by necessity
Arises when a single parcel is divided, and one parcel has no ingress or egress, or without an easement would not have access to water, sewer, etc. Easement by necessity always begins with a single parcel. Party seeking easement must demonstrate a strict necessity (some courts use “reasonable necessity”). Ends when the necessity ends. Can be created when a single parcel is divided into dominant and servient estates, and at the time of the severance, the necessity exists
Easements by prescription
Think easement by adverse possession; but without the required element of “exclusive use,” as it could be used by both the adverse possessor and the owner. Tacking can be applied. Requirements: Elements: (1) Running of the statute, (2) Open and notorious use, (3) Actual possession of the land (This element out too?), (4) Continuous (based on normal use), (5) Hostility (w/o permission); Can be hostile w/o knowledge or intent
Exceeding the scope of an easement
Exceeding the scope of an easement can result in loss of the easement
Terminating easements
Easements can be terminated by: (1) Conservation easement, where the owner of land gives a charity or governmental agency authority over the land to maintain open space [the land owner becomes the servient estate and cannot build, develop, or convey the land], (2) Release, easement owner agrees to release the servient estate but needs to be in writing for SOF, (3) Expiration, where the easement ends upon an agreed date or even which doesn’t need writing becuse the terms are in the original easement, (4) Abandonment, very state specific; mere non-use is not enough and generally, there must be a contemporaneous change that makes the easement unnecessary [or the servient tenement makes the easement no longer useful in the manner prescribed-think rail roads, (5) Merger, when the dominant and servient estates are owned by the same party, and (6) estoppel, if the servient estate owner makes a statement or representation upon which the dominant estate owner relied to his/her detriment
Covenant
A covenant is an agreement to do (or not to do) something related to land or not and can be either affirmative or restrictive
Affirmative covenants
A promise to do something that touches and concerns the land
Restrictive (negative) covenants
A promise not to do something that touches and concerns the land (a promise to build only residential units, or to not use the land for agriculture). Existed because negative easements were limited to SLAMS; they needed an alternative regulatory device to manage land use compatibility
Real covenants
Generally, two parcel owners can contract for agreed use of their land, but the agreement generally dies with the parties. A real covenant, however, is an agreement that runs with the land restricting the use of the land and only runs with the land if the original grantor and grantee were in privity. To be valid: (1) the original parties must have intended for the covenant to bind succeeding owners; (2) must touch and concern the land; and (3) the original parties must be in horizontal privity and the succeeding parties must be in vertical privity, and notice
Horizontal privity
The link between the original parties with the intention that any agreement will continue after change of ownership and is created if the agreement is:
(1) in writing with
(2) an intent that the agreement run with the land,
(3) the agreement touches and concerns the land,
(4) there is notice of the agreement, and
(5) there is an existing relationship (called a succession of estate) between A and B (grantor-grantee, landlord-tenant, debtor-creditor, or shared a different servitude prior to the current agreement)
Vertical privity
Can only take place when there is a chain of privity with one of the original parties. Vertical privity requires a non-hostile nexus between original party and successor party
Termination of covenant
(1) release; formal document relinquishing the obligation, (2) merger; when both properties are owned by the same person,
(3) acquiescence (parties passively allow violations without taking action. i.e., seeks enforcement against one person but not another),
(4) abandonment; widespread violations indicate covenant is no longer being enforced,
(5) changed conditions, circumstances surrounding the property have significantly changed making covenant no longer relevant,
(6) unclean hands (you can’t seek to enforce a covenant that you have violated),
(7) laches (unreasonable delay in enforcing prejudicing a party),
(8) estoppel (think detrimental reliance)
American law real covenant
If any interest passes to a subsequent possessor of the land by vertical privity, the covenant is enforceable. The original parties must intend for the covenant restrictions/allowances to run with the land and affect future possessors/owners. The covenants must “touch and concern the land.” Subsequent owners must have notice. Think AIR notice. This is why such covenants are generally filed with the county where the land is located
Equitable servitude
A promise that will be enforced against successors by a court acting in equity. For the burden to run with the land there must be: (1) promise in writing
(2) original parties intend for the burden to run with the land, (3) must touch and concern the land, and
(4) subsequent owners must have notice. (AIR notice).
Privity is not required to bind successors for an equitable servitude
