servitudes Flashcards
easement
grant of nonpossessory property interest that entitles its holder to use/enjoy another’s land
can be affirmative or negative
how are affirmative easements creates?
PING
presription: COAH
* continuous use for requesite statutory period
* open and notorious
* actual
* hostile
implication: preexisting use/quasi-easement
* previous use has to have been apparent and continous AND the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment
* no writing req
necessity: Implied when LO conveys a portion of her land and by this division deprives one lot of access to a public road or utility line (e.g. with no way out except over some part of the grantor’s remaining land)
* owner of servient parcel has the right to locate the easement so long as reasonably conveient
* no writing req
grant: deed of easement
* signed writing
how are negative easements created?
Right to prevent servient landowner from doing something on the servient parcel
LASS:
* light
* air
* support
* stream water
minority allow one for sceniv view
must be in writing
appurtenant
benefits holder in use/enjoyment of own land
transfers automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance/deed
* All who possess or subsequently succeed to title to the dominant tenement are entitled to the benefit of the easement
* burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement
in gross
Confers upon its holder only some personal or pecuniary/commercial advantage that is not related to their use or enjoyment of their land
e.g. place a billbaord on another’s lot; right to swim in another’s pond, utility co right to lay power lines on another’s lot
not transferrable unless for commercial purposes
must be in writing
cannot be expanded but overuse/misuse does not terminate the easement
* just means servient LO can enjoin the excess use and possibly sue for damages if land has beenharmed
termination of an easement
END CRAMP
* Estoppel: Servient owner materially changes positions in reliance on easement holder’s reliance that it will not be enforced
* Necessity: When need ends, easement created by necessity also ends (so long as not reduced to writing)
* Destruction: Destruction of the servient land, other than thru the willful conduct of the servient owner will terminate the easement
* Condemnation: Condemnation of the servient estate by governmental eminent domain power will terminate the easement
* Release: by holder to servient owner in writing
* Abandonment: physical action; but mere words expressing wish to abandon not enough nor is mere nonuse without intent to abandon
* Merger: Title to easement and title to servient land become vested in same person (unity of property); only applies if the parcels are owned in same manner e.g. duration of servient estate must be equal to or longer than duration of dominant estate (and thus the easement)
* Prescription: servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession
licenese
**mere privilege **to enter another’s land for narrow/delineated purpose
don’t need a writing
* A failed attempt to create an easement results in a license.
* e.g. if a grantor orally grants an easement for more than one year, it is unenforceable because it is not in writing BUT could be a license instead
freely reovcable at will of licensor
* but esoppel: Estoppel applies to bar revocation only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation
real covenants
promise to do or not do something
negative: Promise to refrain from doing something w re to one’s land
affirmative: promise to do something re to land
money damages (legal device)
for burden to run
If the following requirements are met, any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it:
WITHN
writing: original promise (between A and B) must have been in writing
intent (of original parties that cov run/sucessors would be bound)
* can be inferred from circ or language of conveyance
touch & concern: of or pertaining to the land; affects parties in their legal relations as LOs
horizontal and vertical privity:
* horizontal: Nexus between originally burdened and originally benefited parties– requires they shared additional relationship apart from making to covenant e.g. debtor/creditor, LL/T, grantor/grantee
* vertical: Nexus between successor and original covenanting party (on burdened side)– sucessor non hostile ie. cannot be AP
notice: sucessor must have had notice of the promise when she took
for benefit to run
WITV
Writing
Intent
Touch and concern
Vertical privity: non-hostile nexus between original promisee and successor
no horizontal privity
equitable servitude
Promise equity will enforce against successors of burdened land
A single promise can create both a real covenant and an equitable servitude
* but if money damages sought –> RC
* if injunction –> ES
creation: WITNES
* writing
* intent
* touch and concern
* notice
* equitable servitude
no privity of estate is required
implied equitable servitude aka reciprocal negative servitude
aka common scheme doctrine
Exception to general requirement that the original promise be in writing
if a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on *all parcels *provided there was a common scheme of development and notice of the covenants
If the scheme arises after some lots are sold, no implied servitude can arise with respect to the lots already sold without express covenants
notice req: AIR
Actual Notice: D had literal knowledge of the promises contained in the prior deeds
Inquiry Notice: Neighborhood seems to conform to the common restriction
Record Notice: imputed based on publicly recorded documents meaning if the prior deeds are in the grantee’s chain of title the grantee will, under the recording acts, have constructive notice of their contents
enforceable by other lot owners
equitable defenses to enfocement
court will not enforce ES if:** neighborhood conditions have changed so significantly that enforcement would be inequitable**
* must be all or nothing: piecemeal change not enough
* if in subdivision, the entire subdivision must have changed so significantly/been so seriously affects that enforcement of the restriction would be inequitable; e.g. If some houses in the center of the subdivision are not affected by the pollution, then none of the restrictions can be voided; if all lots are affected, then all restrictions are voided
unclean hands: person seeking enforcement vioalting simialr restriction
acquiesence by benefited party in violation of the serv by burdened party
estoppel: benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived
laches: benefited party fails to bring suit against the violator within a reasonable time
