Servitudes

Question 1

Servitudes Generally

Answer 1

● Servitudes are non-possessory interests in land.
● Servitudes enable private agreements among owners that regulate either the way property is used by an owner or access to another owner’s property for a specific purpose.
● Servitudes are divided into two types: easements and covenants.

Question 2

Easements Generally

Answer 2

Easements: an easement is a non-possessory right to use the land of another person
● With agreement
○ Express easement
● Without Agreement (arise as a matter of law)
○ Easement implied by prior existing use
○ Easement by necessity
○ Easements by Estoppel
● An easement grants less than full possession of the land, instead granting only the right to perform specific acts
● An easement may be intended to be permanent or irrevocable for a specified period of time.

Question 3

Kienzle v. Meyers

Answer 3

Background: Involves a family who routes their sewer connection through the neighboring property’s sewer lines (at the time owned by their friends) to avoid having to cross over a creek with the lines. The family needing the sewer connection were allowed to route it by the property owners but when ownership transferred later, the new owner sought to terminate the easement.

Analysis: Creation of an irrevocable license requires: (1) a license, (2) the licensee’s expenditure of substantial money or labor in good faith reliance, and (3) the licensor’s knowledge or reasonable expectation that reliance will occur. The Licensee here was given permission to construct the sewer lines, fulfilling the first prong. They also spent significant amounts of money putting in the link to the other property’s sewer lines, fulfilling the second prong. Reliance was based on a conversation and circumstances suggested that the arrangement was serious, fulfilling the third prong.

Question 4

Creation of Express Easements

Answer 4

● Express easements are voluntarily created in a deed, will, or other written instrument.
● Express easements may arise by grant (conveys easement to another person) or by reservation (“reserves” an easement in land when transferring land to another person)
● Must comply with the statute of frauds
○ Be in writing
○ Be signed by the party to be bound

Question 5

Affirmative Easement

Answer 5

Affirmative Easement: giving an affirmative right for someone else to go on or use your property (permitting a person to use the servient estate is a specified manner)
● majority of easements are this type
● right to DO something on your neighbor’s land

Question 6

Dominant Estate vs Servient Estate

Answer 6

Dominant: estate benefited by the easement (i.e., the one that gets to use the easement)
Servient: estate burdened by the easement (i.e., the one that lets the easement holder use their property)

Question 7

Easement Appurtenant vs Easement in Gross

Answer 7

Easement Appurtenant: one that benefits another parcel of land owned by someone else
● Passes with the dominant estate whenever the dominant estate is transferred to a new owner
Easement in Gross: easement NOT running with the land; easement imposed on a particular party only; cannot be transferred

Question 8

Negative Easement

Answer 8

Negative Easement: Owner of easement/dominant estate having right to tell owner of servient estate not to do something on the servient estate (prevent specified uses of the servient estate)
● right to KEEP your neighbor from doing something on their own land
● Courts generally refuse to enforce agreements that allowed one person to restrict
● Conservation easements – kind of the exception but depends on state law

Question 9

Granted Conveyance of Easement

Answer 9

Granted Conveyance - of easement: owner of the dominant estate transfers rights in the servient land to a new owner including rights to use the easement so that dominant owner themselves can no longer use it

Question 10

Reserved Conveyance of Easement

Answer 10

Reserved Conveyance – of easement: owner of dominant estate transfers rights in the servient land but retains rights to the easement so that they themselves can continue to use it

Question 11

Transfers of Easements

Answer 11

Easement Appurtenant are attached to the land and so therefore the transfer of the dominant land automatically transfers the benefit of the easement to the grantee provided notice is satisfied.
Notice can be satisfied through:
- Actual Knowledge
- Notice from the visible appearance of easement on land; or
- Notice from recorded document creating the easement

Easements in Gross
● Traditional Approach: only commercial easements in gross were freely transferable; non-commercial easements in gross were not transferable.
● Modern Approach: Any easement in gross is freely transferable, unless circumstances show that the parties should not reasonably have expected this result
○ Indicated by contrary intent

Question 12

Implied Easements

Answer 12

An implied easement is one created by operation of law where there is no writing establishing the easement.

Courts will imply easements only under certain circumstances including:
● Easement implied by prior use
● Easement by necessity
● Prescriptive easement
● Easement by estoppel (or irrevocable license)

Question 13

Requirements for Easement Implied from Prior Use

Answer 13

1. Severance of title to land held in common ownership.
   a. Common Ownership occurs when one person owned two parcels, or one large parcel, and a part was sold to another person.
2. An existing, apparent, and continuous use when severance occurs
   a. Timing is key, must be at the time of severance
   b. The owner must have had an existing use of one part of the property to benefit another part of the property in a way that was apparent (visible) and continuous (presumably parties expect the use to continue)
   c. This use before severance is sometimes called a “quasi-easement,” because there can be no easement between one person and themself.
3. Reasonable necessity for the use at time of severance
   a. Timing is key, must be at time of severance
   b. Reasonable necessity means “reasonably convenient” to the dominant land

Question 14

Requirements for an Easement by Necessity

Answer 14

1. Severance of title to land held in common ownership.
   a. Common Ownership occurs when one person owned two parcels, or one large parcel, and a part was sold to another person.
2. Strict Necessity for the easement at the time of severance.
   a. Traditional: Must be completely landlocked with no alternative
   b. Modern: Only “reasonably necessary” is required and non-road purposes may be available too (e.g. electricity or power lines)

Question 15

Covenants Generally

Answer 15

A covenant is an agreement among owners that a parcel or multiple parcels of land will be used in a certain way.
- Real Covenants
- Equitable servitudes

Question 16

Requirements: Easements by Prescription

Answer 16

Claimant must show, in any order:
● Actual Use
● Open and Notorious Use
● Adverse Use (without permission from owner of servient estate)
● Continuous Use
● Statutory Period

Question 17

Requirements: Easement by Estoppel

Answer 17

Claimants must show:
● A license, typically for access purposes
● The licensee’s expenditure of substantial money or labor in good faith reliance, and
● The licensor’s knowledge or reasonable expectation that reliance will occur

Question 18

Scope of an Easement Generally

Answer 18

● Scope of an easement depends on the intent of the original parties
● In general, scope of an easement permits an easement holder to do anything that is reasonably necessary for the full enjoyment of the easement, unless evidence provides otherwise
● In general an easement holder may increase the manner, frequency, or intensity of an easement’s use so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.

Prescriptive Easements: in general courts do not permit expansion of prescriptive easements because it is not based on party intent

Technological Change: In general, an easement expands to accommodate technological change, such as the development from wagons to trucks or telephone lines to cable TV lines.

Subdivision of Dominant Land: In general, when the dominant land is subdivided, every lot owner in the subdivision is entitled to use any easement appurtenant to the dominant land. However, the easement cannot unreasonably burden (substantially interfere with) the servient land.

Third-Party Beneficiaries (Other than Dominant Landowner): In general, an easement holder cannot use the easement to benefit any other parcel other than the dominant land.

Question 19

Termination of an Easement

Answer 19

Terms of the Easement: The parties can include an express limitation on the easement, such as expiration date, term of years, or a condition.
Release: The easement holder may release the easement to the servient owner by executing and delivering a writing that complies with the Statute of Frauds.

Merger
● If one person obtains title to both the easement and the servient land, the easement terminates under the doctrine of merger.
● An easement cannot be terminated by merger if there are any future interests in the dominant or servient estate. Instead, use of the easement is suspended until the future-interest holder becomes entitled to possession.

Prescription: The servient landowner may terminate an easement by prescription based on the same elements of easement by prescription except the servient owner must substantially interfere with the holder’s use of the easement.

Estoppel: An easement ends if the servient owner substantially changes his position in reasonable reliance on the holder’s statement that the easement will not be used in the future.

Abandonment: Abandonment depends on the easement holder’s intent. Abandonment of an easement is established if the holder (a) stops using the easement for a long period and (b) takes other actions that clearly show intent to relinquish the easement.

Question 20

Covenants Generally

Answer 20

Real covenants and equitable servitudes are promises that relate to real property and that burden or benefit subsequent owners of land.

Covenants can be affirmative or negative, depending on the type of burden on the landowner.

Negative covenants restrict how the burdened property may be used.
- Examples
- Limit to single family residence
- Prohibit farm animals on property
- Prohibit sale of alcohol
- Prohibit commercial use

Affirmative Covenants require the owner of the burdened estate to perform some act or to pay money.
- Examples
- Duty to maintain wall
- Duty to maintain dam

Question 21

Horizontal and Vertical Privity

Answer 21

Horizontal Privity: Denotes a relationship between original parties, promisor and promisee, for a servitude/covenant

Vertical Privity: Denotes a relationship between an original party to agreement and a successor.

Question 22

Real Covenant Running Requirements

Answer 22

Statute of Frauds: Covenant must be in a document that satisfies the statute of frauds (ie signed)

Intent: Original parties must intend to bind their successors to the land (express in writing or inferred from circumstances)

Touch and Concern: Covenant must touch and concern the land. It must relate to the enjoyment, occupation, or use of the land.

Notice: Promisor’s successor must have notice of the covenant by
- Actual Notice: stated in the deed or seller/landlord told them
- Record Notice: recorded in county records
- Inquiry Notice: visible/apparent, so purchaser should have asked

Horizontal Privity: Requires the original parties to the covenant to have shared some interest in the land independent of the covenant (e.g., landlord-tenant, cotenant, owner of dominant and servient tract of easements, grantor-grantee, and mortgagor-mortgagee).

Vertical Privity: Burden and Benefit
- Vertical privity requires, for the burden to run, the successor to the land receive the entire estate held by the original promisor.
- Vertical privity requires, for the benefit to run, the successor to the land receive the entire estate or a smaller estate to that held by original promisor.

Burden vs. Benefit RULE: For a burden to run, every factor must be satisfied. For a benefit to run notice and horizontal privity are not required

Question 23

Equitable Servitude Requirements

Answer 23

Statute of Frauds: Covenant must be in a document that satisfies the statute of frauds or implied from a common plan where a developer imposed uniform restriction on a subdivision in which all lots are burdened by restrictions even if they do not appear in the chain of title to every lot (e.g. limit to residential use based on sales literature, statements by developer, and percent of deeds with restrictions).

Intent: Original parties must intend to bind their successors to the land (express in writing or inferred from circumstances)

Touch and Concern: Covenant must touch and concern the land. It must relate to the enjoyment, occupation, or use of the land.

Notice: Promisor’s successor must have notice of the covenant by:
- Actual Notice: stated in the deed or seller/landlord told them
- Record Notice: recorded in county records
- Inquiry Notice: visible/apparent, so purchaser should have asked

Vertical or Horizontal Privity are never required for Equitable Servitudes

Notice is Required for a Burden to run but not for a benefit

Question 24

Negative Easement

Answer 24

A negative easement is an express easement that entitles the dominant owner to prevent the servient owner from performing an act on servient land.
- Example: P holds an easement preventing Q from building any structure on Q’s land.

In general, the most common negative easements are conservation easements. Conservation easements are express easements that restrict the development and use of the servient land in order to preserve open space, farmland, historical sites, or wild and undeveloped land.

Question 25

What is the difference Between an equitable servitude and a real covenant?

Answer 25

Real covenants and equitable servitudes are both types of restrictive covenants used in property law to impose obligations or limitations on the use of land. They are intended to run with the land, meaning they bind not only the original parties but also subsequent purchasers of the property. While both serve similar purposes, they differ in terms of their legal nature, enforcement, and remedies available.

Real Covenant:

Legal Nature: A real covenant is a contractual agreement between parties that creates a promise to do or not do something on the land. It is recognized in law and requires specific formalities, such as being in writing and signed by the party to be bound.

Privity: Real covenants generally require both horizontal privity (a connection between the original covenanting parties, such as a grantor-grantee relationship) and vertical privity (a connection between the original party and the subsequent purchaser, such as a landlord-tenant relationship).

Enforcement: Real covenants are enforceable at law, meaning they can be enforced by a court of law, and the remedies available are typically legal in nature.

Remedies: The primary remedy for a breach of a real covenant is damages, which is a monetary compensation for any loss or harm caused by the breach. In some cases, a court may also issue an injunction to prevent further breaches, but this is less common.

Equitable Servitude:

Legal Nature: An equitable servitude is a restriction on the use of land based on principles of equity and fairness. It does not require the same formalities as a real covenant and may be implied from the circumstances, such as the existence of a common plan or scheme for a subdivision.

Privity: Equitable servitudes do not require horizontal privity, which means they can bind subsequent purchasers of the property even without a direct contractual relationship between the original covenanting parties.

Enforcement: Equitable servitudes are enforceable in equity, meaning they can be enforced by a court of equity, such as a chancery court or a court with both legal and equitable jurisdiction.

Remedies: The primary remedy for a breach of an equitable servitude is an injunction, which is a court order requiring the breaching party to stop the violation or to take specific actions to remedy the breach. Damages may also be awarded in some cases, but the focus is typically on equitable relief.

In summary, the main differences between a real covenant and an equitable servitude lie in their legal nature, privity requirements, enforcement, and remedies available. Real covenants are more formal and enforceable at law, with damages as the primary remedy, while equitable servitudes are less formal, enforceable in equity, and typically remedied through injunctions.