Servitudes Flashcards
Easement
The grant of a nonpossessory interest that entitles its holder to some limited us or enjoyment of another’s land
Negative Easement
Entitles its holder to compel the servient owner to refrain from doing something that otherwise would be permissible. Can only be created in writing.
Permitted only in 4 circumstances:
- Light
- Air
- Water
- Undermining Foundations
Affirmative Easement
The right to do something on servient land (another’s land)
Easement Appurtenant
When the easement benefits its holder in his physical use and enjoyment of his own property.
2 Parcels must be involved:
- Dominant (derives the benefit of the easement)
- Servient (bears the burden of the easement)
Passes automatically with the dominant tenement regardless if its in the document of transfer
Easement in Gross
Confers upon its holder only a personal or financial commercial benefit not linked to the easement holder’s use of enjoyment of any of his own land.
Only one parcel is involved
Not transferrable unless they are for a commercial purpose
Scope of Easements
Easements are set by the terms or conditions that created it. There can’t be any unilateral expansion of an easement to benefit a non-dominant parcel
(Brown v. Voss)
4 Ways in which an Affirmative Easement can be created
- Prescription
- Implication
- Necessity
- Grant
Easement by Grant
An easement to endure for more than 1 year must be in writing with the formal requirements of a deed because of SoF
Easement by Implication (Implied Easement)
An easement that can arise without a writing.
Requirements: (Van Sandt v. Royster)
- Common ownership in the land originally
- Prior use by the common lot was apparent
- Must be necessity for continuing use
Easement by Necessity
Court will imply an easement by necessity whenever the grantor conveys part of his land with no way out, except over some part of the grantor’s remaining land.
Occurs when you are landlocked
Easement by Prescrption
Analogous to adverse possession:
- Continuous use for the given statutory period
- Open and Notorious
- Actual Entry (need not be exclusive)
- Hostile - without the servient owner’s consent
License
A mere privilege to use another’s land for some delineated purpose
- Not subject to SoF
- freely revocable by licensor, unless estoppel applies to bar revocation
When does estoppel 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
Profit
Gives its holder the right to enter servient land and take from it the soil or some other natural resource
- Shares all the rules of easements
Real Covenant
A contract regarding land - can be either restrictive (negative) or affirmative
Restrictive Covenant
A promise to refrain from doing something related to land
- this was created because of the property law insistence that negative easements had to be so limited in scope
Affirmative Easement
A promise to do something related to land
What is the essential difference between a Real Covenant and an Equitable Servitude?
The relief that a plaintiff is seeking:
If P wants money damages, construe the promise at law as a covenant. Have to show that the covenant runs with the land
If P want an injunction, construe the promise in equity as an equitable servitude
What does running with the land mean?
A covenant is said to run with the land at law when it is capable of binding successors to the originally promising parties
Requirements to show that a burden of a covenant runs with the land
WITHIN
- Writing - original promise had to be in writing
- Intent - original parties intended that the burden would run
- Touch and Concern - the promise affects the parties as landowners
- Horizontal and Vertical Privity
- Notice
Horizontal Privity
Refers to the nexus between A and B (original landowners who created the covenant) - requires that they be in succession of estate.
Succession of Estate requires that at the time A made their promise, A and B were in a grantor/grantee relationship. One had to purcjase the burdened property from the other.
Vertical Privity
Non-hostile nexus between A and A1
The only time VP will be absent is if A1 acquired his interest through adverse possession
Requirements for the benefit to run
WITV
- Writing
- Intent
- Touch and Concern
- Vertical privity (Horizontal is not needed)
Equitable Servitudes
A promise regarding land that equity will enforce against successors. Accompanied by injunctive relief
This was born to relieve the strictness of real covenants
How to create an equitable servitude
WITES
- Writing
- Intent
- Touch and Concern
- Notice
- ES - privity is not requires to bind successors to an equitable servitude
Implied Equitable Servitude
Always arises in the context of a subdivider.
Two requirements:
- Subdivider must have had a general scheme (ex: of residential development)
- Defendant had notice of the restriction
Three Forms of Notice for ES
- Actual
- Inquiry
- Record
Actual notice
Prior to closing, defendant became aware of the common restriction
Inquiry Notice
If the neighborhood appears to conform to the common restriction. If a reasonable inspection would reveal that every lot had residential housing, then D is put on inquiry notice
Record notice
sometimes imputed to buyers on the basis of the publicly recorded documents
Doctrine of Changed Conditions
Comes up whenever someone subject to the terms of an equitable servitude restricting their land use argues to the Court that they should be released from the terms of the restriction bc the neighborhood as so changed that the restriction no longer makes sense
How to satisfy the doctrine of changed conditions:
You must show that the change you allege is so pervasive that the entire area’s essential character has been forever altered
Termination of Restrictions on Land
- Time
- Merger
- Release
- Abandonment
- Estoppel
- Changed Conditions
