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Real Property > Servitudes > Flashcards

Servitudes Flashcards

1
Q

Easement - Definition

A

A non-possessory property interest that confers a right to use another’s land

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2
Q

Easement - Easement Appurtenant

A

Entitles a dominant estate owner to use a servient estate’s land
- Attaches to the dominant estate and passes automatically (even if not mentioned in a conveyance)

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3
Q

Easement - In Gross

A

Entitles an individual or entity (not a dominant landowner) to use the servient estate

  • Attaches only to servient estate; there is no dominant estate
  • e.g. right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond
  • Similar to license, but irrevocable; may be transferred
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4
Q

Easement - Affirmative

A

Entitles its holder to make affirmative use of the servient estate

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5
Q

Easement - Negative

A

Entitles its holder to restrict the servient estate from otherwise permissible activities

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6
Q

Easement - Creation

A

Easements may be created by prescription, implication, necessity, or expressly by grant or reservation

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7
Q

Scope of Easements - Definition

A

An easement’s scope is determined by the terms or conditions that created it

  • In interpreting an easement’s scope, courts will consider the reasonable intent of the original parties
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8
Q

Scope of Easements - Expansion

A

Easement holders cannot unilaterally expand the scope of their easement (e.g. through overuse or misuse)

  • Overuse or misuse of an easement does not terminate the easment
  • Remedy for violation = injunction or damages
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9
Q

Scope of Easements - Duty to Repair

A

Easement holder has a duty to make repairs if he is the sole use

If both the servient landowner and the easement holder use an easement, the repair costs are apportioned

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10
Q

Express Easement - 2 Ways to Create

A

1) Grant or
2) Reservation

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11
Q

Express Easement - Grant

A

An express grant of the easement

  • Created by instrument (e.g., written agreement) in which the servient estate owner gives easement to owner of dominant estate
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12
Q

Express Easement - Reservation

A

Grantor conveys title to land but reserves the right to continue using the land for a designated purpose

  • Grantor may only reserve an easement for himself (void if reserved for the benefit of another)

e.g. - O conveys property to A, reserving an easement allowing access to a path across the property

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13
Q

Express Easement - Requirements (2)

A

EEs must be:

1) In writing (otherwise will violate SoF); and

2) Signed by the servient estate holder

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14
Q

Easement by Prescription - Definition

A

A process of acquiring an easement; similar to acquiring title by adverse possession

Note: An easement can also be terminated by prescription if the servient landowner interferes with the easement sufficiently to satisfy the above requirements

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15
Q

Easement by Prescription - Requirements (4)

A

Acquirer’s use of another’s land must be:

1) Continuous: For the applicable statutory period

2) Open and Notorious: Owner knows or should know of use

3) Actual

4) Hostile: Without owner’s permission

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16
Q

Easement by Implication - Definition

A

An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots

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17
Q

Easement by Implication - Requirements (4)

A

1) Easement exists prior to division of a single tract of land;

2) Common grantor’s use is continuous and apparent;

3) Use is reasonably necessary for enjoyment of the dominant tenement; and

4) Parties intended the use to continue after division of the land

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18
Q

Easement by Implication - Exceptions (2)

A

Easement may be implied without prior use where:

1) Subdivision Plat: Lots in a subdivision are sold with reference to a map plan, or

2) Profit a prendre: Holder of a profit a prendre has an implied easement to pass over the land’s surface as reasonably necessary to extract materials (e.g., wood, coal)

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19
Q

Easement By Necessity - Definition

A

An easment can arise if access to or from a property is impossible without the easement (i.e. the easment’s existence becomes necessary)

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20
Q

Easement By Necessity - Creation

A

Usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to a public road or utility

  • The owner of the servient estate can choose a reasonable location for the easement
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21
Q

Easement By Necessity - Termination

A

Expires automatically when the necessity ends

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22
Q

Negative Easements - Definitions

A

Entitles the holder to prevent the servient landowner from engaging in otherwise permissible actions on his own land

Note: Restrictive covenants are utilized more frequently than negative easements to prevent a landowner from engaging in certain activities on their land

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23
Q

Negative Easements - Four Categories of Acts May be Permitted

A

1) Light
2) Air
3) Subjacent or Lateral Support
4) Stream of Water from an Artificial Flow

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24
Q

Negative Easements - Creation

A

Can only be created by express grant (writing signed by grantor)

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25
Q

Termination of Easements - Anagram

A

DAMPENER

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26
Q

Termination of Easements - (8)

A

1) Destruction
2) Abandonment
3) Merger
4) Prescription
5) Estoppel
6) Necessity Ends
7) Expiration
8) Release

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27
Q

Termination of Easements - Destruction of Servienet Tenement

A

Unless destruction results from wilful conduct of the servient owner

28
Q

Termination of Easements - Abandonment

A

Easement is terminated if its holder physically demonstrates an intent to permanently abandon it

  • mere words or non-use are insufficient
29
Q

Termination of Easements - Merger

A

Easement terminates automatically if one person acquires title of both the easement and the servient land
- re-dividing the merged title will not revive easement

30
Q

Termination of Easements - Prescription

A

Servient owner may extinguish an easement by interfering with it using elements of adverse possession

31
Q

Termination of Easements - Estoppel

A

Where servient owner reasonably relies on an easement holder’s conduct or representations indicating an intent to abandon the easement; non-use is insufficient

32
Q

Termination of Easements - Necessity Ends

A

Easements by necessity expire when the need that created them ends

33
Q

Termination of Easements - Expiration

A

If easement was established for a set term, or to expire upon stated conditions, expiration of the term or occurrence of the stated conditions will terminate easement

34
Q

Licenses - Definition

A

A right to use another person’s (licensor’s) land, which is revocable at the licensor’s will

  • e.g. oral permission for neighbor to use licensor’s pool, theater tickets (grant a license to ticket holders), right to use a parking lot
35
Q

Licenses - Interest in Land?

A

Not an interest in land; a privilege

36
Q

Licenses - Revocable?

A

Yes at any time unless estoppel applies

37
Q

Licenses - Alienable?

A

Inalienable - may not be assigned or transferred

Any attempt to do so revokes

38
Q

Licenses - SoF Requirement?

A

No; can be oral or written; can result from easements that are invalid under SoF

39
Q

Profit - Definition

A

A non-possessory property interest entitling its holder to enter a servient estate to remove resources (e.g. minerals, timber, soil, fish)

All rules governing easements apply to profits (i.e. creation, transferability, and termination)

40
Q

Profit - Extinguishment

A

A profit may be extinguished through misuse or overuse of resources on the servient estate

41
Q

Covenants - Definition

A

A promise to do or refrain from doing something related to land

  • A contractual limitation or promise regarding land

Note: Covs are NOT property interests

42
Q

Covenants - Real Covenants

A

A covenant concerning real property

Runs WITH the land at law: subsequent owners may be burdened by the covenant or may enforce it

43
Q

Covenants - Affirmative Covenant

A

A promise to do something related to land

44
Q

Covenants - Restrictive Covenant

A

A promise to refrain from doing something related to land

45
Q

Covenants - Termination (3)

A

Can occur by

a) Written release
b) Merger of benefited and burdened estate, or
c) Condemnation of burdened property

46
Q

Covenants - Covs v. Equitable Servitudes

A

Difference is the remedy

Cov: Money Damages
ES: Injunction

47
Q

Requirements For Burdens of Covenant to Run with Land - Acronym

A

WITH-N

Writing
Intent
Touches and Concerns the Land
Horizontal and Vertical Privity
Notice

48
Q

Requirements For Burdens of Covenant to Run with Land - Writing

A

Original Cov was in writing

49
Q

Requirements For Burdens of Covenant to Run with Land - Intent

A

Parties intended to bind successors in interest

  • Look to language of the cov; courts are liberal in construing requisite intent
50
Q

Requirements For Burdens of Covenant to Run with Land - Touches and Concerns the Land

A

Cov must affect parties’ legal relations as landowners (very low standard)

  • Homeowner association fees satisfy this requirement
51
Q

Requirements For Burdens of Covenant to Run with Land - Horizontal and Vertical Privity

A

H: Relationship between the covenanting parties (e.g. grantor/grantee, L/t, fee ownership/easement right in same land, mortgagor/mortgagee)

V: Relationship between covenanting parties and their successors in interest (e.g. contract, devise, descent)

52
Q

Requirements For Burdens of Covenant to Run with Land - Notice

A

Successor in interest had notice of the covenant when she took her interest

53
Q

Requirements for Benefits of Covenant to Run with Land - Acronym

A

WIT-V

Writing
Intent
Touches and Concerns the Land
Vertical Privity

54
Q

Requirements for Benefits of Covenant to Run with Land - Writing

A

Original Covenant was in writing

55
Q

Requirements for Benefits of Covenant to Run with Land - Intent

A

Original parties intended benefit to run with land

  • look to language of the covenant; courts are liberal in construing requisite intent
56
Q

Requirements for Benefits of Covenant to Run with Land - Touches and Concerns the Land

A

The covenant must affect parties’ legal relations as landowners (very low standard)

57
Q

Requirements for Benefits of Covenant to Run with Land - Vertical Privity

A

Successors in interest are in vertical privity with the original covenanting parties (e.g. through contract, devise, or descent

  • Horizontal not required in a majority of states
58
Q

Equitable Servitudes - Definition

A

ESs are covenants enforced in equity against successors through injunctive relief (i.e. injunction is the remedy)

  • i.e. a cov that will be enforced against successors of the burdened land who have notice of the cov
  • Privity is not required to bind successors
59
Q

Equitable Servitudes - Creation Requirements (4)

A

1) Writing: written promise

2) Intent: OG parties must intend to bind successors

3) Touches and Concerns the Land

4) Notice: Successors of the burdened land had notice

  • Notice not required for benefit to run
60
Q

Equitable Servitudes - Written Exception

A

Reciprocal servitudes may be implied from a common scheme for development of a residential subdivision

61
Q

Equitable Servitudes - Defense to Enforcement (5)

A

A court will not enforce an equitable servitude if any of the following exists

1) Pervasive changes in the neighborhood

2) Estoppel
3) Acquiescence
4) Unclean hands
5) Laches

62
Q

Reciprocal Negative Servitudes - Definition

A

If land is subdivided into parcels under a common development scheme, with only some parcels having negative servitudes, these restrictions may be impliedly binding against all subdivided parcels

  • Allows lot owners to enforce restrictions on the use of property against other subdivision lot owners (enforced through injunction)

Note: Usuallly arises on exam where an owner divides land into smaller lots to create a common development scheme/subdivisions

AKA “reciprocal negative easement” or “implied reciprocal servitude”

63
Q

Reciprocal Negative Servitudes - 2 Ways to Create through Implication

A

1) Common Scheme
2) Notice

64
Q

Reciprocal Negative Servitudes - Common Scheme

A

Developer evidenced intent to create a negative servitude under a common scheme for all subdivided parcels

CS may be evidence through:
a) recorded plat
b) General Patttern of Restrictions, and/or
c) Oral Representations to early buyers

65
Q

Reciprocal Negative Servitudes - Notice

A

Owner of the subject lot has notice of the restriction in the deeds of other subdivision lots - 3 Types of Notice

Real Property (10 decks)

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