Servitudes Flashcards
Easements and Covenants
Servitude
Right or obligation that “runs with the land”.
“Run with the land”
Automatically passes to subsequent owners (possessors sometimes)
Covenant
A restriction on what an owner can do with their own land, or, less traditionally, obligation of the owner in connection with their land.
Easement
A nonpossessory right to use another’s land for limited purpose but are meant to last.
(Most common is the “right of way” to right to enter/exit one’s land)
Easement Distinguish from lease, license and contracts?
Lease - possessory rights for a specified pd. of time
License - temporary rights that can be revoked at any time.
Contracts - if you want to bind future owners, you need servitude.
Easement Appurtenant (two types)
Gives a right to whoever possesses or owns the parcel of land that the easement benefits.
(“I’m benefitting off the burdened estate to get to the main road”) - cannot be severed.
- Dominant (benefited) estate -land that comes with the right to benefit from a servitude.
- Servient (burdened) estate - land subject to the burden of a servitude.
- Two parcels ALWAYS adjacent
Always presumed
Green v. Lupo (RULE)(motorcycle runway)
Parol evidence is admissible to construe an easement as appurtenant to the dominant estate when the written agreement is ambiguous, and there is a strong presumption in favor of appurtenant easements unless limited by the terms of creation or transfer.
Easement in gross or “Personal Easement”
gives a right to some person (doesn’t have to be human) without regard to ownership of some other piece of land. (PERSONAL)
- unpermitted to transfer
*most common - utility company
Profit
allows non-owners to collect resources from the land, such as coal, water, or timber.
Express Easements
WIN: An express easement will run with the burdened or benefited estate if:
- it is in writing; satisfies SOF
- Notice to the servient estate holder of the easement -
a. Actual notice
b. Constructive notice - (deed search)
c. Inquiry notice - (visible sign) - There was intent to form an easement - Easements bind future owners of the servient estate (or benefit future owners of the dominant estate) only if the original parties intend them to be bound (or benefited).
Easement by estoppel
- Permission;
- Foreseeable and reasonable reliance on continued permission;
- Claimant changed position in reliance (usually investment); and
- Easement necessary to prevent injustice. (detrimental reliance)
Lobato v. Taylor (RULE)(Taylor denied access to land w/ fence)
Even if a legal document doesn’t clearly say so, people might still have the right to use someone else’s land if they’ve been using it for a long time (easement by prescription) and it’s necessary (easement by necessity) for them to use their own land.
The court can recognize these rights if there’s enough evidence that the original owners intended to allow the use and the users relied on being able to continue using the land by promise of the grantors. (easement by estoppel)
The settlers’ reliance was reasonable because rights were expected, intended, and necessary.
Factors of justifiable reliance
(1) nature of the transaction; and
(2) sophistication of the parties.
Easement by prescription
AVE-USA
(1) Actual Use (not possession like in AP)
(2) Visible
(3) Exclusive -minority
(4) Uninterrupted
(5) Statutory period
(6) Adverse (w/o permission)
(7) Acquiescence - the owner knew and didn’t do anything about it.
Frech v. Piontkowski (RULE)(lake for rec. purposes)
An abutting landowner may acquire a prescriptive easement for recreational use over a nonnavigable, artificial body of water if the use has been open, visible, continuous, and uninterrupted for fifteen years and made under a claim of right, with the burden of proof on the party claiming the easement.
Easements implied by prior use (a.k.a. easements by implication)
- Two parcels were owned by common grantor(common ownership);
- One parcel was previously used for the benefit of the other parcel in an apparent and continuous matter;
- The use was not merely temporary; the use is “reasonably necessary” for enjoyment of the dominant estate; and
- a contrary intention is neither expressed or implied.
Easements by necessity
- The dominant and servient estates were formerly one parcel; and
- Dominant estate became landlocked when severed from servient estate.
Granite Properties v. Manns (RULE)(multiple parcels of land)
If someone owns two properties, uses part of one to help the other in an obvious and ongoing way, then splits up the ownership, the new owner might have to let the old owner keep using the helpful part if it’s reasonably important for enjoying their property.
Reasons for Easement termination
(1) in writing (release of the easement by the holder);
(2) by their own terms— if the deed expressly states the easement is to last for ten years;
(3) by merger;
(4) by abandonment; or
(5) by AP or prescription by the owner of the servient estate or by a third party; and sometimes
(6) because of frustration of purpose.(easement becomes impossible)
Neponsit v. Emigrant Bank (RULE) (lien against bank for covenant on foreclosure)
If a neighborhood’s original developer makes an affirmative obligation that homeowners have to pay a yearly fee to maintain shared spaces, and this rule significantly impacts the homeowners’ rights and duties, it can legally apply to future homeowners too.
Real Covenants
(1) in writing;
(2) intent to ‘run with the land’;
(3) touch and concern both the dominant and servient estates;
(4) Privity of estate:
(i) horizontal privity - between the original covenanting parties
(ii) vertical privity - between those parties and succeeding owners.
Traditional remedy = damages
Horizontal privity (b/w original parties)
(1) Simultaneous (mutual) Privity
- parties have simultaneous interest in the same parcel of land
e.g. landlord and tenant
(2) Instantaneous Privity
- Covenant created during the legal transfer of land. (MUST be @ same time)
- Excludes agreements b/w neighbors and agreements b/w grantor at grantee if not made @ time of conveyance.
Vertical privity
OG covenanting parties transferred their interests to subsequent possessors of the parcel. Includes - a sale, lease, inheritance, and foreclosure, but not AP.
Two types of Vertical Privity jurisdictions
(1) Strict privity - Grantor does not retain any interest in the land to have VP and no VP when owner just leases property.
(2) Relaxed privity - Covenants run to all those assigned possession and includes VP with tenants/lessees.
Equitable Servitude
(1) writing;
(2) intent to ‘run with land’;
(3) touch and concern both estates; and
(4) Notice
Burden: does the restriction affect the use and enjoyment of the property?
Benefit: does the restriction improve the enjoyment of the land OR increase its market value?
Traditional remedy = Injunctive relief
Substantive requirements: the “touch and concern” test.
Courts have traditionally allowed covenants to run with the land only if they “touch and concern” the land, meaning that they affect the use or value of the land itself.
Restatement (Third)
(1) Writing
(2) Intent to Run
(3) Notice
(4) Enforceable unless unreasonable - Covenant is not arbitrary, spiteful, capricious.
Racially Restrictive Covenants
Racial covenants were commonly formed by groups of neighbors to enforce a white supremacist-based paradigm to restrict racial minorities (esp. Black Americans)
Shelley v. Kraemer (RULE)
Background: a white neighborhood sued for the court to divest property interest from a Black family in their home for violating a racial covenant that was created 30 years prior.
When courts use their power to enforce private agreements that discriminate against people based on their race, it counts as the state discriminating too, (STATE ACTION) which is not allowed under the 14th EPC of the Constitution.
State Action Doctrine:
State action doctrine refers to the principle that the protections of the Fourteenth Amendment apply only to actions taken by state governments, not to private conduct. However, private conduct can be considered state action when it is supported by the state’s power, such as through enforcement by state courts.
