Servitudes

Question 1

Easements Defin

Answer 1

Grant of non-possessory property interest in land, consisting of the right to use or control the land

Question 2

Affirmative Easement Defin

Answer 2

Gives holder the right to do something on another’s land called the servient tenement

Question 3

Negative Easement

Answer 3

Entitles its holder to compel the servient land owner to refrain from doing something that would otherwise be permissible

Question 4

Appurtenant

Answer 4

• When it benefits the easement holder in their physical use or enjoyment of their own land
• Takes two parcels of land

Question 5

Held in Gross

Answer 5

• holder realizes only a personal or commercial gain, not linked to the easement holders use & enjoyment of their land
• Takes 1 parcel of land

Question 6

Four ways of creating an affirmative easement

Answer 6

Prescription
Implication
Necessity
Grant & reservation

Question 7

Creating affirm easement - prescription

Answer 7

Continuous - Uninterrupted USE for the statutory time period consistent with that of a reasonable easement holders use

Open and notorious - Visible USE not covert or hidden

Hostile - USE without servient owners permission

Actual - Literal use not symbolic or hypo

Exclusive - The right must not depend on a similar right in others (i.e the land user must have an indep right to claim an easement)
In most states the user can acquire a prescriptive easement even thought the easement is also used by the servient owner and other

Question 8

Creating an affirm easement - implication

Answer 8

Rule = Courts will imply an easement from a prior or existing use if three req are met:
1) There was a unity of ownership between the servient and dominant tenements
2) An apparent, existing, and continuing use of one parcel at the time of severance and
3) At the time of severance the parties expected that the use would survive division because it was reasonably necessary to the dominant tenements use and enjoyment

Endure indefinitely unless terminated

Question 9

Creating affirm easement - necessity

Answer 9

Rule = an easement of a right of way will be implied by necessity if the follow req are met
1) There was a unity of ownership between the servient and dominant tenements
2) Necessity existed at the time of the severance of the two tenements
- Depending on the jurisdiction either strict or reasonable necessity
i. Strict necessity = claimed easement is the only way to access the dominant tenement (traditional and dominant view)
ii. Reasonable nec = alt access to the dominant tenement cannot be obtained without a substantial expenditure of money and/or labor (Minority view)

Landlock setting - an easement of right of way will be implied by necessity if the grantor conveys a portion of his land with no way out except over some part of grantors remaining land

Endures only so long as necessary

Question 10

Creating affirm easement - grant & reservation

Answer 10

Express ways of creating easements

1) Grant - Created by grant from the servient tenement holder to the dominant tenement holder
- SOF applies & must be in writing (deed of easement is the writing)

2) Reservation - A party selling or transferring property can reserve for himself (common law & maj rule) or for a third person (modern trend but min rule) the right to use the property for a specified purpose
- SOF also applies typically contained in a land deed

Question 11

Scope of easements

Answer 11

• Scope is set by the terms or conditions that created it
• Unilateral expansion of an easement is not permitted

Question 12

Ways to Terminate an Easement (10)

Answer 12

1) Merger - title to the dominant tenement and title to the servient tenement become vested in same person
2) Occuerence - easement created to end upon the occurrence of some event will expire automatically if and when the stated event occurs
3) Destruction - destruction of servient tenement other than through the wilful conduct of the servient owner will terminate the easement
4) Estoppel - the servient owner materially changes position in reasonable reliance of the easement holders assurances that the easement will no longer be enforced
5) Release - release in writing given by the easement holder to the servient landowner
6) Necessity - expire as soon as necessity ends (but not if express grant)
7) Condemnation - may terminate by condemnation if the govt exercises its eminent domain power to take title to fee interest in the servient estate for purpose that is inconsistent with continued existence of the easement
8) Abandonment - easement holder must demonstrate by physical action the intent to never make use of easement again - more than mere none use
9) Prescription - an easement can be terminated when the servient owner interferes with it in accordance with the elements of adverse pos
10) expiration - duration of easement was limited in some way it ends with the expiration of stated period

Question 13

Dominant tenement (easements)

Answer 13

Parcel that derives the benefit as a consequence of the easement

Question 14

Servient tenement (easements)

Answer 14

Parcel that bears the burden of the easement

Question 15

Five types of servitudes

Answer 15

Easements
License
Profit
Real Covenant
Equitable Servitude

Question 16

License

Answer 16

• Mere privilege to enter another land for some narrow purpose
• Freely revocable but estoppel can bar revocation if the licensee has invested substantial money, labor or both in reasonable reliance of licenses continuation (then it is an easement by estoppel)

Question 17

Profit

Answer 17

• Profit entitles its holder to enter the servient tenement and take from its things attached to the land
• All the same rules as easements

Question 18

Real Covenant

Answer 18

Def - a covenant that is capable of binding successors and enforceable at law
- Money damages follow a breach
- Property interest

Question 19

Equitable Servitude

Answer 19

• Def = Becomes an E.S when a covenant is capable of binding successors and enforceable in equity
• Injunctive relief follows a breach
• Covenant becomes an equitable servitude when it is capable of running with the land in equity meaning it can bind successors to the OG covenanting parties

Question 20

Creation of equitable servitude

Answer 20

WITNES
W - It is in writing with the exception of common scheme doctrine
common scheme doctrine - Under CSD the majority of courts will imply what is called implied equitable servitude to hold B, the unrestricted lot holder to the restriction
i. Two elements
1) When sales began the subdivider A, had a general scheme of residential development which included the D lot now in question
2) The D must have had some form of notice of the restriction when they took - AIR
I - Intent - intended promise would bind successors
T - Touch & Concern - Must affect the parties legal relations as landowners not simply as members of the public
N - Notice assignees or successors of OG promising parties had one sort of notice (Actual, Inquiry, Record)
ES - This is equitable servitudes

Question 21

10 ways to Terminate a Covenant

Answer 21

MAUL A CREEP

M - Merger: termianted on the basis of unity of ownership of the benefit and burden by the same person
A - Acquiescence: arises when P is trying to enforce the servitude against D but P failed to enforce the servitude against other breaches by D
U - Unclean Hands: court will refuse to enjoin a violation of a servitude that the P previously violated
L - Laches: involves an unreasonable delay by P to enforce a servitude against D causing prejudice to D
A - Abandonment: resembles acquiescence except that it makes servitude unenforceable as to the entire parcel rather than only as to the D immediately involved, violations must be so general as to frustrate the OG purpose of the covenant
C - Changed Conditions Doctrine: When a party seeks to be released from the terms of an ES because of changed conditions they must convince court the change complained of is so pervasive that the entire areas essential character has been irrevocably altered
R - Release: a formal discharge of the covenant that is in writing SOF and typically recorded
E - Estoppel: if D had reasonably relied upon Ps words/conduct making it inequitable to allow P to enforce the servitude
E - Eminent Domain: condemnation of the burdened parcel by govt eminent domain power will end the covenant
P - Prescription: can be terminated when the promisor (burden holder) interferes with the promisee (benefit holder) from benefitting from the covenant in accordance with the elements of adverse possession

Question 22

For a burden to run with the land (E.S/Covenants)

Answer 22

WITHN; a challenging

W - Writing: og promise between A & B in writing
I - Intent: The OG parties must have intended that the promise binds successors courts are generous in imputing requisite intent
T - Touch & Concern: Promise must touch and concern the land meaning it affects the parties legal relations as landowners not as members of the public
H - Horizontal & Vertical Privity:
Horiztonal - A (burden) to B (benefit)
Refers to the privity of estate between OG covenanting parties A and B who at the time the promise was made was in succession of estate
Grantor-grantee or landlord-tenant, or mortgagor-mortgagee, or shared some other servitude in common
Vertical - A (burden) to A-1, privity of estate based on some non-hostile nexus between A & A-1 (nexus = contract, blood rel, devise)
On the burden side (A) strict vertical privity is required - only enforceable against someone who has succeeded to the same estate as that of the OG promise
N - Notice:
A-1 must have had AIR
Actual - literal
Inquiry - what a routine inspection would reveal
Record - what a properly recorded deed would reveal

Question 23

For a real covenant to run with the land

Answer 23

WITV - B challenging

W - Writing: og promise between A & B in writing
I - Intent: The OG parties must have intended that the promise binds successors courts are generous in imputing requisite intent
T - Touch & Concern: Promise must touch and concern the land meaning it affects the parties legal relations as landowners not as members of the public
V - Vertical Privity - Must be some non-hostile nexus between B and B-1 which can be satisfied by contract, blood, or devise
On the benefit side, the standard is relaxed - Enforceable by a person who succeeds to the OG promisee’s estate or to a lesser interest carved out of that estate