Servitudes

Question 1

How is an affirmative easement created?

Answer 1

• P- Prescription (use that is continuous, open and notorious, actual under a claim of right that is hostile for request statutory period).
• I- Implication (implied from prior use; at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended
• N- Necessity (division of a tract deprives one lot of means of access out).
• G – Grant (writing signed by grantor).

Question 2

What parties are bound to an affirmative easement? What is the remedy available?

Answer 2

Easement appurtenant is transferred automatically with dominant tenement. Easement in gross for commercial purposes is assignable. Injunction or damages

Question 3

What is a prescription?

Answer 3

Use that is continuous, open and notorious, actual under a claim of right that is hostile for request statutory period. There is no requirement of exclusive use for a person to obtain an easement by prescription. Exclusivity is only required in cases of adverse possession.

Also the fact that the true owner is not aware of a persons use and did not contest it is irrelevant, so long as the persons initial use of the land was without permission.

Question 4

How is a negative easement created?

Answer 4

L-A-S-S: Light, Air, Suppor,t and Streamwater. Can be created only by writing signed by grantor.

Question 5

What remedy is available under an negative easement?

Answer 5

Injunction or damages.

Question 6

How is a real covenant created?

Answer 6

Created by writing signed by grantor.

Question 7

What parties are bound to a real covenant? In other words, when does the burden and benefit of promise run to successor? What remedy is available?

Answer 7

Burden of promise will run to successor of burdened lot if WITHN requirements are satisfied:

• W: Writing,
• **I: ** Intent,
• **T: ** Touch & concern,
• **H: ** Horizontal and vertical privity and
• N: Notice.

Benefit of promise will run to successor of benefited lot is WITV:

• W: Writing,
• **I: ** Intent,
• T: Touch and concern and
• V: Vertical privity.

Damages are available.

Question 8

How are equitable servitudes created?

Answer 8

Writing signed by grantor (unless implied by General Scheme Doctrine).

Question 9

In regards to equitable servitudes, what are the requirements for the burden to run? benefit to run? What remedies are available?

Answer 9

Successors bound to the burden if WITNes: Writing, Intent, Touch and concern, Notice (actual, inquiry, or record).

The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee’s successors, if:

(i) the original parties so intended, AND (ii) the servitude touches and concerns the benefited property.

NOTE: Privity not required for benefit or burden to run. Injunctions are available as a remedy.

Question 10

What is a reciprocal negative equitable servitude/ the General Scheme Doctrine?

Answer 10

According to majority, in a subdivision, residential restriction contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction if: At start of subdividing, grantor had

(i) common scheme AND
(ii) unrestricted lot holders had notice.

Note: Minority rule will not bind subsequent grantees unless their lots are expressly restricted in writing.

Question 11

Under the General Scheme Doctrine (reciprocal negative servitudes), what parties are bound? What remedies are available?

Answer 11

Where common scheme exists, subsequent purchasers with notice are bound. Injunctions are available.

Question 12

What are easements? examples?

Answer 12

the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement.

Common examples: the privilege to lay utility lines on another’s land; the easement giving its holder the right of access across a tract of land.

Question 13

What is an affirmative easement?

Answer 13

The right to do something on servient land.

Question 14

What is a negative easement?

Answer 14

The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in only four categories: (1) Light (2) Air (3) Support (4) Steam water from an artificial flow

NOTE: In a minority of states, a fifth neg. easement for scenic view.

NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY, BY WRITING SIGNED BY THE GRANTOR. THERE IS NO NATURAL OR AUTOMATIC RIGHT TO A NEGATIVE EASEMENT.

Question 15

When is an easement extinguished?

Answer 15

An easement is extinguished when the easement and servient tenement become owned by the same person but only if the interest acquired is equal to or greater than the interest owned.

In other words, for there to be a merger which will extinguish an easement, the duration of the servient estate must be equal to or longer than the duration of the dominant estate (and therefore the easement). For example, if A owned the east parcel in fee simple but later acquired Blackacre as a life estate in the servient estate (the estate with the easement), the west parcel. Because the duration of the servient estate was shorter, there is no merger of the two estates and the easement was not extinguished by the A’s partial ownership of the servient estate.

Question 16

What is the effect of an easement holder using the easement beyond its legal scope?

Answer 16

The servient landowner may enjoin the use.

Question 17

When is an easement appurtenant?

Answer 17

The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property. It takes two, two parcels are involved. A dominant tenement gets the benefit and a servient tenement bares the burden.

Question 18

When is an easement in gross?

Answer 18

The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, servient land is burdened. However, there is no benefited or dominant tenement. Now only one parcel is involved. It is the servient land.

Common examples: the right to place a billboard on another’s lot; the right to fish or swim in another’s pond; the utilities company’s right to lay power lines on another’s land.

Question 19

Is an easement appurtenant transferable? if so, how?

Answer 19

The appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance. Note that the burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser w/o notice of the easement.

Question 20

Is an easement in gross transferable? if so, how?

Answer 20

An easement in gross is not transferable unless it is for commercial purposes.

Question 21

What is required for an easement to be created by grant?

Answer 21

An easement to endure for more than one year must be in writing that complies with the formal elements of a deed. This is because of the Statute of Frauds. The writing to evidence the easement is called a deed of easement.

Question 22

What is required for an easement to be created by implication?

Answer 22

Also known as the easement implied from existing use. A court may imply an easement if

(1) the previous use was apparent AND
(2) the parties expected that the use would continue because it is reasonably necessary to the dominant land’s use and enjoyment.

Question 23

What is required for an easement to be created by necessity?

Answer 23

The landlocked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over part of grantor’s remaining land.

Question 24

What is required for an easement to be created by prescription?

Answer 24

An easement may be acquired by satisfying the elements of adverse possession: “COAH”

• Continuous use for the statutory period (in VA 20 years);
• Open and Notorious use;
• Actual use; and
• Hostile (w/o consent).

Note: Permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile.

Question 25

How is the scope of an easement determined?

Answer 25

By the terms or conditions that created it.

Question 26

How is an easement terminated?

Answer 26

Remember END CRAMP:

• Estoppel - Here, the servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced;
• Necessity: Easements created by necessity expire as soon as the need ends. However, if the easement, at- tributable to necessity, was nonetheless created by express grant it won’t end when the need ends;
• Destruction of the servient land, other than through the willful conduct of the servient owner ends the easement;
• Condemnation of the servient estate by eminent domain ends the easement;
• Release. A written release given by the easement holder to the servient holder;
• Abandonment. The easement holder must demonstrate by physical action the intent to never use the easement again. Note: Abandonment requires physical action by the easement holder;
• Merger Doctrine. Also known as unity of ownership. The easement is extinguished when title to the easement and title to the servient land become vested in the same person.Note: If complete unity of title is achieved, the easement is extinguished. Even though there may be later separation of title the easement is not revived;
• Prescription. The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.

Question 27

Define a license.

Answer 27

A mere privilege to enter another’s land for some delineated purpose (typically narrow). Licenses are a nonpossessory interest in land.

Examples: Tickets to a game, Neighbors talking by the fence.

Question 28

Are licenses subject to the statute of frauds? are they revocable?

Answer 28

No, they are not subject to the SoF. Thus, you do not need a writing to create a license. The grant of a perpetual easement can be enforced as a license when it fails to satisfy the SoF. Licenses are freely revocable, at the will of the licensor, unless estoppel applies to bar revocation.

Question 29

When will estoppel apply to bar revocation?

Answer 29

Estoppel will apply to bar revocation only when the licensee has invested substantial money, labor, or both in reasonable reliance on the license’s continuation.

VA distinction: An irrevocable license is called an equitable easement.

Question 30

In the context of servitudes, what is a profit?

Answer 30

The profit entitles the holder of the benefit to take some resources (e.g. soil, timber, fish) from the servient estate. The profit shares all the rules of easements.

NOTE: Only a profit is terminated when surcharged (misuse of the interest or legal scope exceeded). Misuse of the interest can terminate a profit but not an easement.

Question 31

What is a covenant?

Answer 31

The covenant is a promise to do or not do something related to land. It is UNLIKE the easement because it is not the grant of a property interest, but rather limitation or promise regarding land. Contractual limitation. If a real covenant is more restrictive than a zoning ordinance, the covenant controls. Covenants can be negative (restrictive) or affirmative.

Question 32

What is a negative covenant?

Answer 32

Also known as restrictive covenants. The restrictive covenant is a promise to refrain from doing something related to land.

Example: “I promise not to paint shutters brown.”

Question 33

What is an affirmative covenant?

Answer 33

The affirmative covenant is a promise to do something related to land.

Example: “I promise to paint our common fence.”

Question 34

How to know whether to construe the given promise as a covenant or as an equitable servitude?

Answer 34

On the basis of the remedy P seeks.

• When P seeks money damages construe the promise as a covenant (remedy at law);
• If P wants an injunction, construe as a equitable servitude (remedy at equity).

Question 35

What are the requirements for the burden of a covenant to run with the land?

Answer 35

REMEMBER W I T H N: The elements necessary for the burden to run:

(i) Writing- the original promise between A and B has to be in writing;
(ii) Intent - the original parties A and B intended that the covenant would run. Courts are generous in finding the requisite intent.
(iii) Touch and concern the land - the promise must affect the parties’ legal relations as landowners, and not simply as members of the community at large;
(iv) Horizontal and vertical privity;
(v) Notice - subsequent purchaser for value must have had actual, inquiry, or record notice of the arrangement at the time of purchase.

Question 36

What is meant by a covenant that touches and concerns the land?

Answer 36

The promise must affect the parties’ legal relations as landowners, and not simply as members of the community at large. Note: Covenants to pay money to be used in connection with the land (such as homeowners’ association fees) and covenants not to compete do touch and concern the land.

VA DISTINCTION: A covenant not to compete, doesn’t touch and concern and will not run with the land; considered unique and personal to original parties.

Question 37

What is horizontal privity?

Answer 37

Horizontal privity refers to the nexus between A & B - the original parties. Horizontal privity exists between parties to a real covenant who shared an independent interest in the land at the time they entered the covenant. It requires that they be in succession of estate, meaning that they were in a grantor-grantee or landlord-tenant or mortgager-mortgagee relationship. Horizontal privity is hard to establish; its potential absence is the likely sticking point because of this many burdens will not succeed as running with the land.

Question 38

What is vertical privity?

Answer 38

Vertical privity is easier to establish. It refers to the nexus between A & A1. It simply requires some non-hostile connection (e.g. contract, devise). The only time that vertical privity will be absent is if A-1 acquired her interest through adverse possession. There is vertical privity between the covenanter and his successor in interest. To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenanter at the time he made the covenant.

Question 39

When do negative covenants touch and concern the land? affirmative covenants?

Answer 39

Negative Covenants: If they restrict the holder of the servient estate in his use of that parcel of land.

Affirmative Covenants: If they require the holder of the servient estate to do something, which increase his obligations in connection with his enjoyment of the land.

Question 40

What are the requirements for a benefit of a covenant to run with the land?

Answer 40

(a) Intent;
(b) Vertical privity;
(c) Touch and Concern.

Question 41

What is the remedy for a breach of a real covenant?

Answer 41

Damages only, collectible from the defendant’s general assists. If an injunction is sought, the promise must be enforced as an equitable servitude.

Question 42

How can a covenant be terminated?

Answer 42

As with all other nonpossessory interests, a covenant may be terminated by:

(i) written release;
(ii) merger of the benefited and burdened estates, or
(iii) the condemnation of the burdened property.

Question 43

Is privity required for the benefit or burden of an equitable servitude to run with the land?

Answer 43

No, privity is NOT required.

Question 44

What is the remedy for a breach of a equitable servitude?

Answer 44

Injunction

Question 45

Is a writing necessary for the creation of a covenant? Equitable servitude?

Answer 45

Covenant: Writing is ALWAYS required.

Equitable Servitude: Writing is usually required but may arise by implication from common scheme of development of a residential subdivision.

Question 46

What are the equitable defenses to enforcement of an equitable servitude?

Answer 46

A court will not enforce an equitable servitude if:

(A) Unclean Hands - the person seeking enforcement is violating a similar restriction on his own land;

(B) Acquiesced - A benefited party acquiesced (consent or comply passively or w/o protest) in a violation of the servitude by one burdened party;

(C) Estoppel - A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned. (Material changes in position);

(D) Laches - The benefited party fails to bring suit against the violator within a reasonable time; OR

(E) Neighborhood Changes - The neighborhood has changed so significantly that enforcement would be inequitable

Question 47

How is an equitable servitude terminated?

Answer 47

As with all other nonpossessory interests, a covenant may be terminated by:

(i) written release;
(ii) merger of the benefited and burdened estates, or
(iii) the condemnation of the burdened property.

Question 48

Define easement.

Answer 48

A grant of an interest in land that allows someone to use another’s land.

Question 49

Define real covenant/equitable servitude.

Answer 49

Promise to do or not to do something on the land.

Question 50

What is the general rule regarding common driveways and shared walls? running of covenants?

Answer 50

Courts will imply mutual cross-easements of support, with the result that each party can use the wall or driveway and neither party can unilaterally destroy it.

Thus, Courts will treat a wall erected/driveway partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon her land. If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of these covenants run to the successive owners of each parcel.