servitudes Flashcards
easement
a non-possessory property interest that confers a right to use another’s land
servient estate = burdened land
dominant estate = benefited land
types of easements
1) easement appurtenant
2) easement in gross
3) affirmative easement
4) negative easement
easement appurtenant
entitles a dominant estate owner to use a servient estate’s land; attaches to dominant estate and passes automatically even if not mentioned in conveyance
easement in gross
entitles an individual or entity (not a dominant landowner) to use the servient estate; attaches only to servient estate; no dominant estate
may be transferred
affirmative easement
entitles its holder to make affirmative use of the servient estate
negative easement
entitles its holder to restrict the servient estate from otherwise permissible activities
ways to create an easement
1) by prescription
2) by implication
3) by necessity
4) expressly by grant or reservation
express easement requirements
must be:
1) in writing (otherwise will violate SoF) and
2) signed by servient estate holder
easement by prescription requirements
1) continuous
2) open and notorious
3) actual
4) hostile
easement by implication requirements
1) easement exists prior to division of single tract of land
2) common grantor’s use is continuous and apparent
3) use is reasonably necessary for enjoyment of dominant tenement
4) parties intended use to continue after division
easement by implication
an easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots
easement by necessity
can arise if access to or from a property is impossible without the easement; usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to public road/utility
terminates automatically when necessity ends
negative easements
entitles holder to prevent servient landowner from engaging in otherwise permissible actions on his own land; can only be created by express grant
categories of acts that may be prevented by negative easement
1) light
2) air
3) subjacent or lateral support
4) stream of water from an artificial flow
ways to terminate easement
1) estoppel
2) necessity ends
3) destruction of servient tenement
4) release
5) abandonment
6) merger
7) prescription
8) expiration
license
a right to use another person’s (licensor’s) land, which is revocable at licensor’s will; revocable by licensor; inalienable
profit
a non-possessory property interest entitling its holder to enter a servient estate to remove resources; all rules governing easements apply
covenants
a promise to do or refrain from doing something related to land
real covenant
a covenant concerning real property; runs with the land at law
ways to terminate covenants
1) written release
2) merger of benefited and burdened estates
3) condemnation of burdened property
requirements for BURDENS of covenant to run with land
1) original covenant in writing
2) intent
3) touches and concerns the land
4) horizontal and vertical privity
5) notice
horizontal privity
relationship between covenanting parties
vertical privity
relationship between covenanting parties and their successors in interest
requirements for BENEFITS of covenant to run with land
1) original covenant in writing
2) intent
3) touches and concerns the land
4) vertical privity
equitable servitudes
covenants enforced in equity against successors through injunctive relief
creation of equitable servitudes
1) writing
2) intent
3) touches and concerns land
4) notice
defenses to enforcement of equitable servitudes
1) pervasive changes in neighborhood
2) estoppel
3) acquiescence
4) unclean hands
5) laches
reciprocal negative servitudes
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
creation of reciprocal negative servitudes
created through implication if:
1) common scheme
2) notice
