servitudes

Question 1

what is an easement

Answer 1

a nonposessory right to use land in the possession of another to make a particular use of the land for a specific purpose

Question 2

what is the land burdedd by the easement called

Answer 2

servient estate

Question 3

what is land that is benefited by the estate called

Answer 3

dominant estate

Question 4

g holds an easment on A’s land. the easnent allows g to cross a’s land (a particualr use) to get his property ( a specfic purpose). define who is the servient and dominant estate

Answer 4

A’s land is the serveinet estate , Gs land is the dominant estate

Question 5

what is a license

Answer 5

a permission to enter anothers land without trespassing

Question 6

what are the three differences between a liscene and an easement

Answer 6

1. easements are interests in land while licenses are personal privileges
2. easements can exist into perpetuity, but licenses are revokable at the will of the landowner
3. licenses may be granted orally, and easements are subject to the SOF

Question 7

what are the two types of easements and how do you define which is which

Answer 7

easements in gross and easements appurtenant; the intent of the parties as specified in a written easement, defines whether an easement is in gross or appurtenant

Question 8

define an easement in gross

Answer 8

associated with a specific person; gives the easement holder a personal interest in the easement; the easement is not dependent on the easement holder owning any particular parcel of land, and the easement is granted to that specific easement holder, attached to the person and not the land

Question 9

what is an easement appurtenant

Answer 9

benefits the holder because the holder owns a particlar parcel of land.The easement therefore belongs to WHOEVER OWNS THAT PARTICULAR PART OF LAND, usually adjacent to the servient estate
Attaches to land of easement holder(dominant estate) and it passes when the land is sold

Question 10

what happens if the grant is silent as to the type of easement granted

Answer 10

there is a presumption of appuryrnance

Question 11

what is profit a pendre?

Answer 11

a right to go on a land to take something; its a type of easement in gross

Question 12

how is an easement appurtenant assigned?

Answer 12

they transfer when an easement holder transfers the dominant estate

Question 13

how do you assign an easment in gross

Answer 13

they can be assinged ONLY IF the lang makes it assignablle OR its commercial in nature

in sc you need both

Question 14

does an easement in gross need a dominant estate

Answer 14

no

Question 15

are easement appertenants divisible?

Answer 15

yes AS LONG AS the division doesnt overburden the servient estate

Question 16

are easment in gross divisible ?

Answer 16

no because they are presumptively not assignable UNLESS it is commercial OR expressly assignable; it is exclusive, AND the division does not overburden the servant estate

Question 17

sandy island
Facts: Sandy Island owns a tract of land which was conveyed to it by william furniture co
There was some land that was also deeded to the defendant
Included in the conveyance of land from williams to sandy island was the easement and right of way which had been reserved in its deed to the defendant
D built a gate across the easement, and P alleged that this gate blocked the only way in and out of the property
D argues that the easement or right of way reserved by williams to him creed only an EASEMENT IN GROSS and could not be assigned or transferred by williams to P

Issue- Does the right of easement from Williams transfer to sandy island?

Answer 17

Holding- the reservation made in the deed of williams to D created an easement in gross of a COMMERCIAL NATURE and indicates an intention to attach the attribute of assignability to the easement

Question 18

windham

facts:

issue: which type of easement was it

Question 19

gressettee- SCE&G installs fiber optic cables but easement allows only electric

Facts: P gave D an easement giving D the right to construct, operate, and maintain electric transmission lines and all telegraph and telephone liens
Shortly after, d began installing fiber optic communications lines on its existing poles in these easements
After this, D began CONVEYING EXCESS fiber optic capacity to third party companies without notice or compensation to P
P alleged that the easement granted to d do not include the right to apportion any part of the easements to third parties for general telecommunication purposes

Issue:does the holder of a utility easement have the right to apportion part of its own use to third parties as a matter of law and without reference to the written easements?

Answer 19

Holding: page 88: while the lang of the conveyance indicates assignability, the lang limiting the use of the easement to communications necessary to D’s business appears to restrict that assignability.

Reasoning
The rights of an easement holder depend on the interpretation of the grant in the easement
The court rejects D’s argument that the use of a utility easement may be apportioned as a matter of law without reference to the lang of the easement itself BECAUSE if courts were to do so, the owner of a servient estate could never limit the grant of a utility easement, no matter how specific the lang in the easement

Question 20

draw the easement assignabilty flow chart

Answer 20

chart

Question 21

draw the easement divisibility flow chart

Answer 21

chart

Question 22

what happens if the servient estate holder sells tha land and the easement holder never recorded the easement

Answer 22

the easement may be extinguished; ie if the purchaser of the servant estate never knew of the easement, that purchaser may be able to extinguish title under the recording act

Question 23

how are easements created (four ways)

Answer 23

`express written grant, prescription, estopel or implication

Question 24

what is an easement by express grant

Answer 24

a written grant of an easement that satisfies the SOF and be delivered to the easement holder by the servient estate holder

Question 25

what does ambiguity in an easement by express grant mean

Answer 25

a fee simple transfer over an easement

Question 26

what must the writing an easement by express grant contain

Answer 26

it must be in writing
identify the grantor and grantee

contain words manifesting an intention to create an easement

describe the affected land

and be signed by the grantor

Question 27

are you locked into your use with an easement by express grant?

Answer 27

no! these can evolve over time (ie if in 1800 you used easement vial walking, by 2010 you’d be able to use a car

Question 28

what is a reservation?

Answer 28

when a grantor reserves an easement for himself when he transfers a fee interest to a grantee

Question 29

what is an excpetion

Answer 29

when a grantor states that the land transfer is subject to an easment in a third person

Question 30

what is an easment by persctiption

Answer 30

An easement holder gains title by prescription by using the easement for a long enough time without servient estate holder’s permission – and the landowner never objects
The use must be OPEN, NOTORIOUS, AND CONTINUOUS
Similar to AP

Question 31

are you locked into use with an easement by prescription?

Answer 31

yes!

Question 32

what is an easement by implication?

Answer 32

Can only be created where two properties were, at one point in the past, one single property

They must have been severed, and at the time of severance, conditions must have existed that implied the existence of an easement

Question 33

what are the two types of easement by implication and define them?

Answer 33

1. Easement implied by prior existing use
   The use of the easement must have existed prior to (and at the time of) the severance.
   The use must have been apparent, continuous, and REASONABLY NECESSARY prior to and at the time of the severance

2.Easement implied by necessity
The use of the easement is strictly necessary for the enjoyment of the dominant estate, and that strict necessity existed at the time of the severance

Question 34

what does strict necessity mean in terms of easement implied by necessity

Answer 34

Strict necessity means that without the easement, the dominant estate would be landlocked
Just because landlocked doesn’t mean necessary- you need other things

Question 35

does sc recognize an easement implied by prior use?

Answer 35

no, see boyd v bellsouth?

Question 36

when does an easement by impmlation end

Answer 36

it ends with the need

Question 37

what is an easement by estoppel?

Answer 37

Occurs when a license holder relies to his DETRIMENT on permission given by the landowner to use the land for a purpose, and the landowner knows of the license holders reliance

Ie the license may ripen into an estate

Question 38

Pitman v sweeny (easement by express grant) - property is sold with provision that third party has easement – the orchard case
Facts: P bought his property in 68 and D brought his property in 69
D conveyance lang: except therefrom rights of way for roads, including road crossing from west to east
Before d’s purchase and for years after P used a road located on D’s parcel for access to his lad
In 77 D told P he could no longer use the road, but P continued to use it
In 78, D PLANTED AN ORCHARD THAT BLOCKED THE ROAD
In 79, P drove his mobile home through the orchard and destroyed several trees
D told P again not to use the road and bulldozed the road in several places to make it impossible

Issue: does the exception create the easement?

Answer 38

Holding: no! It does not create the easement, it just gives notice
A reservation or exception in a deed cant create rights in strangers to the instrument
The trial court erred in finding P had valid access easement across his property because P was not a party to the deed that conveyed land to D

Question 39

whats the diff btwn a reservation and exception

Answer 39

Reservation: grantor transfers fee interest and reserves the easement for themselves
Exception: telling grantee there is an easement held by a third party

Question 40

Bundy v shirley(easement by prescription) - man revokes permission for neighbor to use his road; the gate case

Issue: whether shirley established a perspective easement over a road on rural property owned by bundy

Answer 40

Holding: no perspective easement here

Reasoning
The use was not adverse because shirley’s use was either with the permission of bowater via the key or through prior permission from bundy to build the gate on his property
Also fails to prove they were there for the SOL years

Question 41

what does evidnece of permission do to any argument of prescritptive easements

Answer 41

it defeats it! cant have ap/prespcrive easement if you have the premission

Question 42

what do you need in order to tack the time on from a prior perosns adverse posession

Answer 42

privity/transfer via deed

Question 43

Kelley v Snyder(easement by prescription) - D claims prescriptive easement after long history of using road

facts: Kelly purchased 28 acres of land from his brother in 1977
The property description did not mention the proprty was subject to an easement
Snyder bought their property from the Rasts in 1989, and the deed included an easement for a 20 ft access road from the highway to Snyder’s property
Kelly claimed he never gave Snyder permission to use the road to access their property
The Snyders never asked for permission, however, Kelly never told them they were not allowed to use the road
Kelly testified that the road was barely passable by a vehicle other than a wagon until Snyder cut a road thorugh after they bought the property and put up a gate and private property sign
The parties had an ongoing dispute about the road for ten years but the only contact he had with Snyder was two convos
Kelly asked Snyder to move the gate when they installed it, and they moved it back about halfway down the property
Kelly asked why he didn’t move it to their property line, and they replied that they had an EASEMENT and a right to do what they wanted with his property
Snyder offered Kelly a key to the gate, but Kelly refused it
Snyder said Kelly never forbade them from using the road, and no one had ever prevented them from using it
Lots of people in the community testified to the existence and use of the disputed road for as far back as the 60s
Kelly filed a complaint, alleging that Snyder had created a 20 ft private roadway on his property without his property without his permission, and he had given Snyder notice to cease using his property for any purpose

Issue: did Snyder have a prescriptive easement to use the road?

Answer 43

Holding: the evidence supports the master’s finding that snyder is the owner of the 20 ft right of way easement, both by claim of right and adverse use

Acquiesce is not the same as giving permission
Kelly should have been more assertive and threatened to involve the law or uput up physical obstructions (like a cement black or like an orchard) so they cant use the road
There should have been an OVERT ACT
A no trespassing sign will not be enough
Nor will expressing frustration

Question 44

what is a claim of right

Answer 44

Must demonstrate a substantial belief that he had the right to use the parcel or roads based on the totality of the circumstances surrounding his use

Question 45

what counts as interupption for the perscriptive easment to no longer be valid

Answer 45

Filing a legal action, personal service, going on the property and impose physical obstructions
Signs dont count; they need to be activkly aware, and signs would allow them to become passive

Question 46

Boyd (easement by implication): owner of antique store uses neighbor’s road to load packages
Facts
In 1923, Bellsouth’s predecessors, AT&T completed construction of a three story building on its property in Denmark, SC
At some point during BellSouth’s ownership, a driveway was constructed which ran from the rear of the building to Beech avenue
A gate was erected at the end of the driveway on Beech avenue
In 1988 BellSouth SEVERED the lot into two parcels and sold one of them with the building to the city
In 1991, the city sold its parcel to John Boyd, who conveyed the parcel to his wife
Boyd used the parcel as a store
The city and Boyd used BellSouth’s gate and driveway to access the rear entrance of the building, but after 9/11 BellSouth decided to construct a fence between the two parcels for security reasons
The fence would prohibit Boyd from using BellSouth’s existing gate and driveway to access the rear entrance of the building.
Boyd brought this action contending that she had an easement IMPLIED BY PRIOR USE, NECESSITY, OR EQUITABLE ESTOPPEL over BellSouth’s parcel

Issue: did boyd have an easement by implication?

Answer 46

Holding: yes via implied by prior use!
Reasoning:An easement by prior use requires showing an easement is reasonably necessary to enjoyment of the property, whereas an easement by necessity requires a stricter showing of necessity.
A party asserting the right to an EASEMENT IMPLIED BY PRIOR USE must establish the following(and in this case boyd met all of the elements)
Unity of title
Severance of title
The prior use was in existence at the time of the unity of title
The prior use was not temporary or casual (ie constantly being used)
The prior use was apparent or known to the parties
Here, the prior use was necessary in that there could be no other REASONABLE mode of enjoying the dominant tenement without prior use AND the common grantor indicated an intent to continue the prior use after severance of the title
For an easement implied by prior use, necessity means there could be no other reasonable mode of enjoying the dominant tenement without this easement
And it must be determined AT THE TIME OF SEVERANCE

Question 47

O’cain(easement by estoppel) : one brother builds a fence to block the other brother’s driveway

Issue: was the lever family equitably estopped from denying the harold’s use of the driveway?

Answer 47

Holding: the record shows that the Harolds did not know the truth as to the facts, and there was prejudicial change in position

The court recognized the investment jerry put into the house and his reliance of belief of being able to use the easement
Lever knew what was going on, and in seeing his reliance he tried to take the easement away
Lever tries to argue no permission but because he let it happen, EE

Question 48

how do we do know what the scope of use is in an easement?

Answer 48

the scope and extent of permissible use turns largely on the language in the instrument that creates the easement

Question 49

where is the best place to look to figure out the scope of use of a particular easement

Answer 49

the best place to look is to the written instrument that created the easement

That instrument governs the use, and it may specify the location and frequency of the use

Question 50

what happens if the written insturment granting an easment is vague as to the particualr uses permiteed?

Answer 50

courts determine the scope of permissible use according to the underluing purpose of the easement.

Uses that are reasonable in light of an easements purpose fall within the scope of the easement

Uses that are unstated yet INCIDENTAL to the indented purpose are also permissible

Question 51

who has the duty/right to maintain and make improvments to the land that serves the easement?

Answer 51

the easement holder has the duty to maintain and make improvments, while the servient estate holder has no duty to maintain the property but they can if they want to

Question 52

what happens when technology changes overtime in relation to easement uses

Answer 52

the permitted use of an easement may likewise change as the dominant estate changes; uses that employ the changed tech or serve the changed dominant estate will fall within the scope of the easement use

Question 53

A, holds an easmet appurtenatn to cross blackacre to green acre, which is an open feild.

years later, a develops greenacre into a subdivision, selling many houses to homebuyers.

can amy divide here easement to cross blackacre among the new residents of the subdivsion?

Answer 53

probablty; as a general matter, courts have veiwed creation of subdivsions as reasonbly forseeable development of the dominant estate

Question 54

what should you keep in mind with changes in the dominant estate via change in tech

Answer 54

if the change in the dominant estate is not reasonably foreseeable, its not within the scope of use

Question 55

what happens when an easement holder exceeds the scope of the easement?

Answer 55

he infringes on the property rights of the servient estate holder, and commits trespasser

Question 56

what are the three ways an easement holder can exceed the scope of the easement?

Answer 56

intensity of use, physcial location, and benefit of non domiaant estes

Question 57

describe how an easment holder’s intenisty of use could exceed the scope of the easement

Answer 57

when that intenisty of use overburdnes the servient estate, in light of the purpose of the easement

Question 58

what does it mean to overburden the servient estate

Answer 58

The use unreasonably damages the servient estate or unreasonably interferes with the use and enjoyment of the servient estate
OR
The use is simply not contemplated by the purpose of the easement (regardless of whether the servient estate suffers actual harm by the use)

Question 59

How can a easement holder exceed the scope of the use via physcial location

Answer 59

An easement holder exceeds the scope by making uses outside the physical location designated by the terms of the easement

If an easement specifies that the use occur on a specific area of the servient estate, making the same use on another portion of the servient estate exceeds the scope

Question 60

how does an easement holder exeed the scope of use via non dominant estate

Answer 60

An easement holder exceeds the scope by using the easement to benefit a non-dominant estate
Ex: an easement to cross into red acre
If you used it to cross into Greenacre then you exceed the scope
If you use the easement to get somewhere else, then you are exceeding the scope

Question 61

Lighthouse tennis club(scope of use): water and sewer company leases easement to telecom companies
Facts: During the building of a condo complex in the sea pines plantation of Hilton head, the developer installed water and sanitary sewer systems, including the needed pipes, valves, etc.

As part of the transaction, the developer granted SI’s predecessor an EASEMENT across its property to the water and sewer company’s adjoining property on which a water tower and related equipment were located

The adjoining property is LANDLOCKED by lighthouses property and is only accessible vis the easement
This easement later ran to SI as the OG water company’s successor

About 20 years after the easement was granted, SI began to lease space on top of its water tower to Telecom for the installation of antennae, support equipment, and emergency power generation equipment

SI leased to telecom the use of the easement so they could maintain and install the equipment
This permitted telecom to travel over Lighthouse’s property, and following the execution of the lease agreements, Telecom began moving equipment onto and through the easement
NONE OF THE EQUIPMENT WAS USED FOR MAINTAINING THE WATER OR SEWER SYSTEMS

Issue: was south island’s leasing of the easement a misuse of the easement? Was the easements use, as provided in the lease agreements, constitute a non permitted use of the easement property?

Answer 61

holding:The easement does not permit SI or its assignees to use the easement across lighthuse property for any purpose except ‘to operate and maintain Lighthouse’s water and sewer systems’ and the easement’s use, as contemplated in the lease agreement, constituted a NON PERMITTED use of the easement property

Question 62

Brown v Voss(scope of use): an easement from A to B is used for a house that straddles B and C
Facts:
In 1952 the predecessor in title of parcel A granted to the predecessor of parcel B a private road easement across parcel A for ‘ingress to and egress from’ parcel B
D acquired parcel A in 1973 and P bought parcel B in 1977 and parcel C in 1977 but from two different owners
When P got parcel B, a single-family house was on the land, and they intend to remove the house and replace it with a different house which would straddle the boundary line common to parcels B and C
P began clearing both parcels B and C and moving fill materials in 1977
D first sought to bar P’s sue of the easement in 1979 by which time P had spent a lot of money in developing the property
D placed logs, a concrete sump and a chain link fence within the easement
P sued for removal of the obstructions, an injunction against D’s interference with their use of the easement and damages

Issue: To what extent, if any, the holder of a private road easement can transverse the servient estate to reach not only the OG dominant estate, but a subsequently acquired parcel when those two combined parcels are used in such a way that there is no increase in the burden on the servient estate

Answer 62

Holding: The P misused the easement by trying to use it to get to parcel C
Reasoning
The easement in this case was created by EXPRESS GRANT
The right acquired is to be determined from the terms of the grant properly constructed to give effect to the intention of the parties
Via the express terms, the predecessor owners of parcel B acquired a private road easement across parcel A and the right to use the easement for ingress to and egress from parcel B

Question 63

what is the most straighforward way that an easement can terminate

Answer 63

via the express terms of the written grant which created it

Question 64

what are the other means of terminating an easement and describe them (6 in all)

Answer 64

Release: the easement holder grants the rights of the easement back to the servient estate holder
The rights of the easement merge into the rights contained in the servient estate
Merger: the servient estate holder gains title to the dominant estate
The rights of the easement merge into the rights contained in the servient estate
Recording act: if the servient estate holder is a bona fide Purchaser who satisfies the criteria of the jurisdictions recording act statute with respect to the easement at issue, the easement terminates when the servient estate transfers to the BFP
BFP= one who has paid full value for the property and has no knowledge of any outstanding interests held by third parties
Purpose ends: if the purpose for the easement can no longer exist, the easement cannot exist either
If an easement depends on the existence of a structure on the servient estate, and if at some point the structure no longer exists, the easement ceases to exist as well
Prescription (adverse possession): the servient estate holder can adversely possess against the easement holder by acting inconsistently with the existence of the easement
Forfeiture: a court could terminate an easement if the easement holder extremely abuses the easement
This rarely happens

Question 65

what is a covenant

Answer 65

RESTRICTS a landowner from making a specific use of his own land

A covenant is a promise by the landowner about how he will use his own land

Question 66

define negative and affirmative covenant

Answer 66

affirmative – obligates the landowner to affirmativly do someting

negative: obligates the landowner to refrean from doing something

Question 67

what is a real covenant

Answer 67

a covenant that enables the party befitted by the promise to sue for damges for the breach of the covenant

Question 68

can a sucussor to the beneifted party enforce the covnenat/promise? if can we hold somone accountable to a promise they didnt make?

Answer 68

yes IF it runs with the land

Question 69

what elements need to be met for a real covenant to be enforceable against or by a successor interest? (3 in all)

Answer 69

intent
touch and concern
privity of estate

Question 70

describe the intent element for a real covenant to apply to successors

Answer 70

the og contracting parties must have intended for the promise to apply to the successor in terest ; any words suggesting such an intent will do ie LOOK TO THE WRITING

Question 71

which covenents are generally intneded to run with the land and whcih ones are not

Answer 71

real covenants/equitale servitudes = inteded to run with the land

personal covenants = not intended to run with the land

Question 72

describe the touch and concern element for a real covenant to apply to sucessors

Answer 72

the promise must touch and concern the land of the sucessor (who either is seeking to enforce the covenant or is being subjected to the covenant)

Question 73

what kind of promises would generally fit the touch and concern element for a real covenant to apply to sucessors in interst

Answer 73

promises affecting the physical structure of land or edifice

promises affecting the appearance of the land

promises affecting the appearance of land

Question 74

what should you think about when assessing the touch and concern element?

Answer 74

for appearce: think of the reasoning behind the enforcement of the restriction on apperacen; does it really impact the apperace or are they trying to control another aspect?

Question 75

describe the privity of estate element for a real covenant to apply to sucessors

Answer 75

horizontal and vertical privity are needed

Question 76

what is horizontal privity

Answer 76

deals with the OG CONTRACTING PARTIES (so ignore the sucessors)

at the time the parties enter into the covennat, there must be a transfer of some real property interest (IN ADDTION TO THE COVENANT) between the og parties to the covenant

Question 77

jack has a covenant with his neighboor julla, that he will not build a toll shed on his property.

what is needed to create a horizontal privity?

Answer 77

jack or jill must transfer some real property INTEREST at the same time that jack makes the promise to jill

so for example, if jack were to transfer an easement to jill at the time he makes the covenant, horizontal privity would exsist

Question 78

A and C are neighboors and execute a document limiting their respective propeires to single family residential use. – is there horizontal privity, why or why not

Answer 78

because the deed alone with the convenant is not enough, there needs to be a transfer of a fee, life estate, easement leasehold, or other real property interest

Question 79

A transfers a lot to deed, with no covenants. six months later, a and c each give the other a deed restricting their lots to single family residential use. is there horizontal privity? why or why not

Answer 79

no horizontal privity because the covneant was not created at the same time as the intial transfer of real property.

Question 80

describe vertical privity

Answer 80

the og party must transfer their real property interest to the successor to be bound by, or to enforce, the covenant associated with that real property

Question 81

what is full vertical privity and who needs it for the real covenant to apply to the sucessor

Answer 81

the party TO BE BOUND (ie the burdened party/promisor) must tranfer his ENTIRE ESTATE to his sucessor for the sucessor to be bound

Question 82

what is less than full vertical privity and who needs it for the real covenant to apply to the sucessor

Answer 82

the party ENFORCING the pomise (ie the benefited party/the promisse) does NOT need to transger his enitre estate to his sucessor in order for his sucessor to be able to enforce the promise

Question 83

what relationship are we worried about with vertical privivty

Answer 83

the relationship between Og k party and the sucessor

Question 84

what relationship are we worried about with the horizontal privity

Answer 84

the relationship btwn the orginal contracting parites not the successors

Question 85

jack has a covenant with his neihboor, jill, that he will not build a tool shed on his property, Blackacre.

jack holds blackacre in FEE SIMPLE ABSOLUTE

if jack transfers a LIFE ESTATE in blackacre to Abe.

what kind of vertical privity is needed, and is it met here.

Answer 85

full vertical privity is needed because Jack and Abe are the burdeed party/promisor.

full vertical privity is not met because he transfered a lesser estate (ie the life estate) and the entiry of his estate was not transfered, he would need to transfer a fee simple absolute

Question 86

jack has a covenant with his neihboor, jill, that he will not build a tool shed on his property, Blackacre.

jill’s property is greenacre, which she owns in fee simple absolute

jill transfers a life estae to mandy.

what kind of vertical privity is needed, and is it met here.

Answer 86

only partial vertical privity is needed here, as Jill and mandy are the benefited estate/promisee

vertical privity is met

Question 87

make the flow chart for real covenat

Question 88

Midsouth golf(real covenants): restrictive covenants in condo complex: do they touch and concern?
Facts:
One of P’s predecessors in interest, FHI, recorded a set of restrictive covenants, entitled the Master declaration (see lang below)
In 1993, the predecessor of P agreed to a set of additional restrictive convents
The 1993 convents allowed the owner of the rec amenities to collect amenity fees from time share units at a rate of up to 5.556 times the fee collected from Indvidual lot owners within Fairfield Harbor.

Issue: was the covenant a personal covenant or a real covenant that could be applied to successors?

Answer 88

Holding: The covenant to pay the fees did not touch and concern D’s properties, the covenant was a personal covenant

The covenant did not run with the land and was not enforceable by P, as a successor in interest to the OG covenantor.

Question 89

what is an equitable servitude

Answer 89

they enable the party benefited by the covenant to sue for an injunction

Question 90

what elements must be met for an equitable servitude to be enforcable against a sucessor in interest to the orginal party?

Answer 90

intent
touch and concern
notice

Question 91

describe the intent element of equitable servitude

Answer 91

the OG contracting parties must intend to apply to the promise in the covenant to successors in interest in the land (ie same as real covenant)

Question 92

describe the touch and concern element for equitable servitdue

Answer 92

the promise touches and concerns that promisors land
(ie same as real covenant)

Question 93

describe the notice element for equitable servitude

Answer 93

the successor in interest to the promisor (who owns the land that is burdened by the covenant) must have notice of the promise
Notice can be actual, record, or inquiry

Question 94

runyon(edit after study session)

Runyon(equitable servitude): owners of waterfront property build condo complex

Question 95

with the equitable servitue, who does the notice requiremnt apply to

Answer 95

the successor burdened party!

the benefit pary do not have to have notice of the servitude; as long as the intent and touch and concern are met, a benefited sucessor owner can enforce an equitable servitude whether or not he had notice of the covenant

Question 96

how is a real covenant created

Answer 96

real covenants are typically created though express terms in a writing (must satisfy SOF – a writing manifesting the intent of the parties, signed by the party to be bound (or if not signed, acceptance of a deed that includes the restriction is sufficient)

Question 97

how is an equitable servitude created?

Answer 97

it could be through a writing, and it could also be enforced though plat filing. in the absense of plat filing or a wiriing, it can be implied via a common scheme

Question 98

what is plat filing

Answer 98

a subdivision developer may enforce an equitable servitude against members of a subdivision, or common interest communities, by recording a plat that contains restrictions for the subdivision lots

Question 99

what is a common scheme

Answer 99

A common scheme where most of the deeds contain the restrictive covenant implies the existence of the covenant in a deed that does not have the covenant

So if everyone if a neighborhood has the covenant in their deed except for a few members, those few members may be subject to the covenant

it would be enough to give them notice of the covenant

Question 100

elements of a common scheme

Answer 100

Common grantor

Who formulated a general plan (with the restrictions) for the designated tract

Most deeds of the parcels with in the designated tract have the covenant restrictions and these covenants run with the land

Question 101

Bomar(covenant creation) man conveys six plots of land with restrictions
Facts: the og owners conveyed six lots from a tract to various pirates, and the deeds conveying these lots restricted them to RESIDENTIAL USE

When the OG husband died, his wife made three conveyances; one was to the defendant

None of the deeds executed by the wife contained restrictions

After getting his land, the D developed his land as a mobile home subdivision

P’s asserted that the covenant, even though it was not written down, was there because six of the lots had the restrictions

Issue: whether restrictions found in some of the Ps deeds give rise to a reciprocal negative easement which are enforceable against the d

Answer 101

Holding: a general scheme or plan was not in effect and the restrictions in the six deeds from the og owner apply only to the lots conveyed by those deeds

Reasoning
The evidence fails to establish taht there was a general plan or scheme of restriction

The only evidence of a scheme or plan is that the OG owner placed restrictions in six deeds executed by him, and the circumstance alone is not enough to satisfy the requirement that there be a general plan or scheme in effect.

Question 102

what is the fact pattern for a common scheme for covenant creation

Answer 102

no writing, common grantor and subject grantees to restrictions

Question 103

what is the most straightforward way to terminate a covenant

Answer 103

where the terms of the covenant expressly call for it

Question 104

what are the other ways to terminate a covenant and define them (5 in all)

Answer 104

release = the person benefited can sign a release to release the promisor; must be in writing

merger - the promisse (or promisor) gains title to the land that is burdned (or benefited) by the covenant

recording act - if a sucessor in interest to the promisor of a covenant is a BFP, who, with respect to the covenant, satisfies the criteria of a jurisdiction’s recording act statute, then the covenant TERMINATES when the land transfers to the BFP.

changed neighborhood: (the covenant not to have tv antenna but years later tv becomes popular) if a neigboohood has changed so much as to make enforcement of the covenant useless, such that the benefit is lost, a court can terminate the covenant; it must affect the general area and no just a few plots

prescription (ap) the promisor can adversly possess against the promisee by acting inconsistently with the existence of the covenant