Servitudes Flashcards
Easements Defin
Grant of non-possessory property interest in land, consisting of the right to use or control the land
Affirmative Easement Defin
Gives holder the right to do something on another’s land called the servient tenement
Negative Easement
Entitles its holder to compel the servient land owner to refrain from doing something that would otherwise be permissible
Appurtenant
- When it benefits the easement holder in their physical use or enjoyment of their own land
- Takes two parcels of land
Held in Gross
- holder realizes only a personal or commercial gain, not linked to the easement holders use & enjoyment of their land
- Takes 1 parcel of land
Four ways of creating an affirmative easement
Prescription
Implication
Necessity
Grant & reservation
Creating affirm easement - prescription
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
Creating an affirm easement - implication
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
Creating affirm easement - necessity
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
Creating affirm easement - grant & reservation
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
Scope of easements
- Scope is set by the terms or conditions that created it
- Unilateral expansion of an easement is not permitted
Ways to Terminate an Easement (10)
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
Dominant tenement (easements)
Parcel that derives the benefit as a consequence of the easement
Servient tenement (easements)
Parcel that bears the burden of the easement
Five types of servitudes
Easements
License
Profit
Real Covenant
Equitable Servitude
License
- 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)
Profit
- Profit entitles its holder to enter the servient tenement and take from its things attached to the land
- All the same rules as easements
Real Covenant
Def - a covenant that is capable of binding successors and enforceable at law
- Money damages follow a breach
- Property interest
Equitable Servitude
- 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
Creation of equitable servitude
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
10 ways to Terminate a Covenant
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
For a burden to run with the land (E.S/Covenants)
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
For a real covenant to run with the land
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
