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Property Law > Servitudes > Flashcards

Servitudes Flashcards

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1
Q

What are examples of nonpossessory interests in land that create a right to use land possessed by someone else?

A

easements, profits, covenants, and servitudes

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2
Q

What is an easement?

A

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)

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3
Q

What are the different types of easements?

A

affirmative, negative, appurtenant, and in gross

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4
Q

What is an affirmative easement?

A

holder is entitled to make affirmative use of the ST

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5
Q

What is a negative easement?

A

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

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6
Q

What is an easement appurtenant?

A

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)

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7
Q

What is the servient tenement?

A

the estate BURDENED by the easement

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8
Q

What is the dominant tenement?

A

the estate BENEFITTED by the easement

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9
Q

Does an ease. app. pass w/ the transfer of the benefitted land?

A

Yes, it does not need to be mentioned in the conveyance

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10
Q

Does the burden of the easement also pass w/ the servient estate (app)?

A

Yes, unless new owner is a BFP w/ no actual or constructive notice of the ease.

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11
Q

What is an easement in gross?

A

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)

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12
Q

Is an ease. in gross transferable?

A

No; however, one that serves an economic or commerical interest (right to erect Billboard) is transferable (personal ones are not)

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13
Q

What are the methods of creating an easement?

A

Prescription, express grant or reservation, implication, and necessity

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14
Q

How do you create an ease. by express grant?

A
  1. 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
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15
Q

How do you create an ease. by express reservation?

A

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)

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16
Q

How do you create an ease. by implication?

A

Created by op. of law = exception to SOF; there are three kinds of ease. by implication

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17
Q

Ease by implication: Implied from existing use

A

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

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18
Q

Ease by implication: implied w/o existing use

A

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)

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19
Q

Ease by implication: necessity

A

landowner sells portion of land and by division deprives one lot of access to a public road or utility line

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20
Q

How do you create ease. by prescription?

A

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

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21
Q

What is the scope of an easement?

A

courts assume ease. was intended to meet both present and future needs of DT (could be widened); but enlarging scope cannot unreasonably burden ST

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22
Q

Does overuse or misuse of ease. terminate it?

A

No - the appropriate remedy is an injunction against that misuse

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23
Q

Does the owner of ST have a duty to make repairs to ease?

A

Yes if sole user; no if both parties are using - ct will apportion repair costs

24
Q

How do you terminate an easement?

A
  1. based on stated conditions; 2. merger 3. release 4. abandonment 5. estoppel 6. prescription 7. necessity 8. condemnation/destruction
25
Q

How does an ease. terminate under merger?

A

same person acquires ownership of easement and ST, DT and ST merge; even there is a later separation, the ease. does not auto. revive

26
Q

How does an ease. terminate under release?

A

by deed of release from owner of easement to owner of ST

expression in writing

27
Q

How does an ease. terminate under abandonment?

A

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

28
Q

How does an ease. terminate under estoppel?

A

if owner of ST changes position in reasonable reliance on representations made or conduct by ease. holder

29
Q

How does an ease. terminate under prescription?

A

must be adverse, cont. interruption of use for prescriptive period (gen. 20 yrs)

30
Q

How does an ease. terminate under necessity?

A

when need expires, so does the ease.

31
Q

What is a license?

A

privilege to go upon land of another; not an interest in land

32
Q

Is a license revocable?

A

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

33
Q

What is created by failed attempted to create an easement?

A

license (e.g. grantor orally grants ease. for more than a year = not in writing, so no a valid ease, but is a license)

34
Q

What is a profit?

A

entitles holder of benefit to take some resources (soil, timber, materials, fish) from ST; all rules governing ease. govern profits

35
Q

How can a profit be extinguished?

A

through surcharge = misuse that overly burdens ST

36
Q

What is a covenant?

A

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)

37
Q

What does it mean for a covenant to run w/ the land at law?

A

subsequent owners may enforce or be burdened by the covenants

38
Q

(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:

A
  1. 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

39
Q

(COV - BENEFIT TO RUN) need the following to be met for promisee’s successor in int. to enforce the covenant:

A
  1. 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.

40
Q

Do promises to pay money to be used in connection w/ land (HOA fee) and cov. not to compete run w/ land?

A

Generally, yes (racially rest. cov. are unenf.)

41
Q

What is the remedy for the breach of a cov?

A

award of money damages (if an injunction is sought = promise may be enf. by equitable servitude)

42
Q

How can a covenant be terminated?

A
  1. written release; 2. merger of benefit/burdened estate; 3. condemnation of burdened prop.
43
Q

What is an equitable servitude?

A

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.

44
Q

What is the usual remedy for equit. serv.?

A

injunction

45
Q

Can a single promise create both a cov. and equit. serv?

A

yes - the main difference is in remedy sought ($ or inj)

46
Q

How is an equitable servitude created?

A

Generally, writing that satisfies SOF, but one exception: negative equitable servitudes (implied from common scheme or development of res. subdiv).

47
Q

What happens when developer subdivides land and some deeds contain neg. covs. and others don’t?

A

Neg. covs. will be binding on all parcels if there was a common scheme and notice of the covs.

48
Q

How do you show common scheme for reciprocal neg. servs.?

A

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

49
Q

What happens if the scheme arises after some lots are sold?

A

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)

50
Q

How do you show notice (to be bound by cov. not in deed)?

A

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)

51
Q

Do you need privity to enforce an equit. serv?

A

no (neither HP or VP for es to be enf. by and against assignees)

52
Q

What are the requirements for the burden of servitude to run?

A
  1. 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)
53
Q

What are the requirements for benefit of servitude to run?

A
  1. intended by orig. parties (and thus enf. by promisee’s successors); 2. T&C benefitted property
54
Q

What are the equitable defenses to enf. of equitable servitude?

A

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

55
Q

How can an equitable servitude be terminated?

A
  1. written release by benefit holders; 2. merger of lands; or 3. condemnation

Property Law (9 decks)

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