Servitudes Flashcards
What are examples of nonpossessory interests in land that create a right to use land possessed by someone else?
easements, profits, covenants, and servitudes
What is an easement?
an easement holder has the right to use another’s tract of land for a special purpose (to lay a pipe, access road, etc), but has no right to possess or enjoy that land (presumed to be of perpetual duration)
What are the different types of easements?
affirmative, negative, appurtenant, and in gross
What is an affirmative easement?
holder is entitled to make affirmative use of the ST
What is a negative easement?
entitle holder to compel the possessor of ST to REFRAIN from engaging in an activity on the servient estate (historically: for light, air, subjacent support, and flow of artificial stream); today = restrictive covenants
What is an easement appurtenant?
when the ease. benefits the holder in his physical use or enjoyment of another tract of land; need two tracts of land (dominant and servient)
What is the servient tenement?
the estate BURDENED by the easement
What is the dominant tenement?
the estate BENEFITTED by the easement
Does an ease. app. pass w/ the transfer of the benefitted land?
Yes, it does not need to be mentioned in the conveyance
Does the burden of the easement also pass w/ the servient estate (app)?
Yes, unless new owner is a BFP w/ no actual or constructive notice of the ease.
What is an easement in gross?
holder of this easement acquires right to use the ST (has nothing to do with another parcel of land; not two tracts); benefits the holder rather than the parcel (right to swim)
Is an ease. in gross transferable?
No; however, one that serves an economic or commerical interest (right to erect Billboard) is transferable (personal ones are not)
What are the methods of creating an easement?
Prescription, express grant or reservation, implication, and necessity
How do you create an ease. by express grant?
- needs to be in writing; 2. signed by holder of ST (unless duration is brief, 1 year or less, to be outside SOF); and 3. must comply w/ formal req. of deed
How do you create an ease. by express reservation?
arises when grantor conveys title to land but reserves the right to continue to use the tract for a special purpose (cannot reserve for someone else = void)
How do you create an ease. by implication?
Created by op. of law = exception to SOF; there are three kinds of ease. by implication
Ease by implication: Implied from existing use
Implied if: 1. prior division of a single tract; 2. apparent and cont. use exists on servient part; 3. reasonably necessary for enjoyment of dominant part; and 4. ct. determines parties intended use to cont. after division
Ease by implication: implied w/o existing use
arises in two situations: 1. subdivision plat (lots sold in sub in ref. to plat showing streets leading to lots = buyers of lots have impl. ease. to ues streets); 2. profit a pendre (holder of profit has imp. ease to pass over surface of land and use it to extract product)
Ease by implication: necessity
landowner sells portion of land and by division deprives one lot of access to a public road or utility line
How do you create ease. by prescription?
Similar to acquiring prop. via adverse possession; the use must be: 1. open & not (discoverable upon inspection); 2. adverse (no permission); 3. cont. and uninterrupted; and 4. for statutory period
What is the scope of an easement?
courts assume ease. was intended to meet both present and future needs of DT (could be widened); but enlarging scope cannot unreasonably burden ST
Does overuse or misuse of ease. terminate it?
No - the appropriate remedy is an injunction against that misuse
Does the owner of ST have a duty to make repairs to ease?
Yes if sole user; no if both parties are using - ct will apportion repair costs
How do you terminate an easement?
- based on stated conditions; 2. merger 3. release 4. abandonment 5. estoppel 6. prescription 7. necessity 8. condemnation/destruction
How does an ease. terminate under merger?
same person acquires ownership of easement and ST, DT and ST merge; even there is a later separation, the ease. does not auto. revive
How does an ease. terminate under release?
by deed of release from owner of easement to owner of ST
expression in writing
How does an ease. terminate under abandonment?
holder demonstrates by physical action (building a structure that blocks access to ease) an intent to permanently abandon the ease; merely expressing wish to ab. is not enough, neither is nonuse; oral expressions combined w/ long period of nonuse may be sufficient
so expression + physical action
How does an ease. terminate under estoppel?
if owner of ST changes position in reasonable reliance on representations made or conduct by ease. holder
How does an ease. terminate under prescription?
must be adverse, cont. interruption of use for prescriptive period (gen. 20 yrs)
How does an ease. terminate under necessity?
when need expires, so does the ease.
What is a license?
privilege to go upon land of another; not an interest in land
Is a license revocable?
yes, at will of licensor; licenses are inalienable - if you try to transfer, revoked
only irrevocable if 1. estoppel (licensee invests subs. amt. of $ or labor in reliance on license = could become ease by estoppel) or 2. license coupled w/ interest
What is created by failed attempted to create an easement?
license (e.g. grantor orally grants ease. for more than a year = not in writing, so no a valid ease, but is a license)
What is a profit?
entitles holder of benefit to take some resources (soil, timber, materials, fish) from ST; all rules governing ease. govern profits
How can a profit be extinguished?
through surcharge = misuse that overly burdens ST
What is a covenant?
normally found in a deed, a written promise to do something on the land (maintain a fence) or a promise not to do something (not build a multifamily dwelling)
What does it mean for a covenant to run w/ the land at law?
subsequent owners may enforce or be burdened by the covenants
(COV - BURDEN TO RUN) For a successor-in-interest to the burdened estate to be bound by the covenant (as if she had expressly agreed to it), need:
- intent; 2. notice; 3. HP; 4. VP; and 5. T&C
intent: covenanting parties must have intended that successors be bound (usually found in language)
notice: subsequent purchaser for value must have had actual, inquiry, or record notice of the arrangement at time of purchase
HP: when promisor entered into cov. w/ promisee, the two had a shared interest in land independent of cov. (grantor-grantee, LL-T, etc.)
VP: successor in interest to the covenanting party must hold the entire interest held by the covenanting party
T&C: neg. covs. T&C if they restrict holder of ST in use of that parcel; aff. covs. T&C if they require hodler of ST to do something otherwise not obligated to do
(COV - BENEFIT TO RUN) need the following to be met for promisee’s successor in int. to enforce the covenant:
- intent; 2. VP; 3. T&C
VP: benefits of a cov. run to the assignees of orig. estate or any lesser estate (any succeeding possessory estate may enf. the benefit)
*NOTE: HP is not required for benefit to run. Thus, where HP is lacking, the promisee’s succ. can enf. the cov. against the promisor, but not the promisor’s successors
T&C: if promised performance benefits the covenantee and her succ. in their use and enjoyment of benefitted land.
Do promises to pay money to be used in connection w/ land (HOA fee) and cov. not to compete run w/ land?
Generally, yes (racially rest. cov. are unenf.)
What is the remedy for the breach of a cov?
award of money damages (if an injunction is sought = promise may be enf. by equitable servitude)
How can a covenant be terminated?
- written release; 2. merger of benefit/burdened estate; 3. condemnation of burdened prop.
What is an equitable servitude?
covenant that, regardless of whether it runs w/ the land at law, EQUITY will enforce against assignees of burdened land who have NOTICE of the cov.
What is the usual remedy for equit. serv.?
injunction
Can a single promise create both a cov. and equit. serv?
yes - the main difference is in remedy sought ($ or inj)
How is an equitable servitude created?
Generally, writing that satisfies SOF, but one exception: negative equitable servitudes (implied from common scheme or development of res. subdiv).
What happens when developer subdivides land and some deeds contain neg. covs. and others don’t?
Neg. covs. will be binding on all parcels if there was a common scheme and notice of the covs.
How do you show common scheme for reciprocal neg. servs.?
implied only if at time that sale for subdivision began, developer had plan that all parcels would be subj to same restriction – shown by 1. recorded plat; 2. general pattern of restrictions; or 3. oral representations to early buyers
What happens if the scheme arises after some lots are sold?
no implied servitude can arise with those already sold w/o express covenants (Lots 1-5 sold w/o restrictive cov; 6-50 contain one = cov cannot be enf. as servitude against owners of 1-5)
How do you show notice (to be bound by cov. not in deed)?
grantee must have notice of cov. in deeds of others in the subdivision – through actual (direct knowledge); inquiry (neighborhood appears to conform to common restrictions); or record (prior deed w/ cov in grantees chain of title)
Do you need privity to enforce an equit. serv?
no (neither HP or VP for es to be enf. by and against assignees)
What are the requirements for the burden of servitude to run?
- intended to run by covenanting parties; 2. successor of promisor has actual, inquiry, or record notice of servitude; 3. cov. T&C land (restricts ST)
What are the requirements for benefit of servitude to run?
- intended by orig. parties (and thus enf. by promisee’s successors); 2. T&C benefitted property
What are the equitable defenses to enf. of equitable servitude?
ct. will not enf. ES if 1. unclean hands (person seeking enf. is violating similar restriction on own land) 2. benefited party acquiesced in violation of serv. by one burdened party; 3. benefited party acted in way that a reasonable person would believe the cov. was abandoned (estoppel); 4. benefited party fails to bring suit w/in reasonable period (laches); or 5. neighborhood has changed so significantly that enf. would be inequitable
How can an equitable servitude be terminated?
- written release by benefit holders; 2. merger of lands; or 3. condemnation
