Servitudes

Question 1

What are the 5 kinds of servitudes?

Answer 1

Affirmative easements, negative easements, affirmative profits, real covenants, equitable servitudes

Question 2

What does appurtenant vs. in gross mean?

Answer 2

In gross means no land needs to be owned by the beneficiary

Appurtenant means the land is what is benefitted

Question 3

What are the negative easements allowed at common law?

Answer 3

Light, air, water, support

Question 4

What are the SoF exceptions for creation of easements?

Answer 4

Fraud, part performance, estoppel, implication, prescription

Question 5

What are the two ways an easement is created in a deed?

Answer 5

Reservation: Provision in a deed creating some new servitude which did not exist before as an independent interest (At CL could not benefit 3rd party, can now)

Exception: Provision in a deed that excludes from the grant some preexisting servitude on the land (Cannot benefit 3rd party)

Question 6

What is a license?

Answer 6

A license is an oral or written permission given by the occupant of land allowing the licensee to do some act that would otherwise be a trespass

Question 7

What are the three kinds license? Which are revocable?

Answer 7

Permissive: Licensee can be there (revocable)

License + Interest: License irrevocable as long as profit (e.g., to fish on land) remains

Estoppel: Irrevocable as long as use exists

Question 8

Can easements be modernized?

Answer 8

Yes, if reasonable

Question 9

Can easements be extended?

Answer 9

In vast majority of jurisdictions, no

Question 10

What are the two views for determining whether a license cannot be revoked because of estoppel?

Answer 10

Maj. view: Need a writing
Min. view: An oral license is fine

Question 11

What are quasi-easements?

Answer 11

Easements implied from previous use in which there is one previous common owner

who used one part of the land previous, apparently, and continuously to benefit another part of the land

and that use is now necessary

Question 12

What are two kinds of quasi-easements?

Answer 12

Implied reservation: DT retained by grantor

Implied grant: ST retained by grantor

Question 13

What are the different views for determining what “necessary” means under the requirements for a quasi-easement as they relate to the different kinds?

Answer 13

Implied reservation (DT retained by grantor)
Maj: Requires strict necessity (usually only ingress/egress)
Min: Allows for reasonable necessity

Implied grant (ST retained by grantor)
Requires only reasonable necessity

Question 14

What are the requirements for an easement implied by necessity?

Answer 14

Previous common owner

Easement is a strict necessity, not a mere convenience

Necessity existed at the time of the severance of the two estates (causation element: severance caused the necessity)

Question 15

What are the three statutory views for dealing with land-locked estates?

Answer 15

CL/Maj. view: Owner of landlocked property will be given way of egress/ingress even if owner is aware of the situation at purchase

Min: Grantor can landlock themselves because they would only do it if efficient

WA/OR (AJ prefers): Will not allow person to remain landlocked, gets private power of eminent domain and must reimburse dominant tenement

Question 16

What are the requirements for prescriptive easements?

Answer 16

Continuous and uninterrupted
Adverse use
Notorious and open
SoL satisfied

Question 17

Because adversity can be difficult to prove regarding use, what are the rules for dealing with that difficulty?

Answer 17

Maj. rule: Presume adversity if the other conditions are met; to rebut, landowner must do something to interrupt the prescriptive use

Question 18

Are appurtenant easements assignable?

Answer 18

Yes, they pass automatically to an assignee

Question 19

Are easements in gross assignable and divisible?

Answer 19

If the court intended the easement to be assignable, then allowed

If the the easement in gross is an exclusive right, it is divisible; if not, then the one stock rule

Exception: If it is personal or there is a fear of burdening the land, the court may find it is not assignable

Question 20

What are the ways an easement can be terminated?

Answer 20

Release – normally requires written and recorded, easement owner agrees

Expiration – if duration is limited in some way (defeasible easement)

Merger – easement owner later becomes the owner of the servient estate

Estoppel – if the servient owner reasonably relies on a statement by the dominant tenement owner

Condemnation – if gov exercises its eminent domain power to take title to a fee interest in the servient estate for a purpose inconsistent with the continued use of the easement

Prescription – if servient owner wrongfully/physically prevents the easement from being used for the prescriptive period

Abandonment – (Marvin Brandt) makes servitude unenforceable as to the entire parcel rather than just the party immediately involved
Usually cannot be abandoned through non-use alone; must file to abandon

Question 21

What is a real covenant? What are the damages?

Answer 21

A covenant between parties enforceable at law that binds the parties’ successors

Remedy is damages

Question 22

What are the requirements for a real covenant?

Answer 22

1) Agreement must be in writing

2) Parties must intend to bind future successors

3) Promise touches and concerns the land (If you put in two average homeowners who are not subject to transaction costs, would they come to the same agreement?)

4) Vertical and horizontal privity of estate

Question 23

What is vertical and horizontal privity of estate, and what requirements need to be met for real covenants?

Answer 23

Vertical: Privity of estate between one of the covenanting parties and the successor in estate
For the burden to run, the entire same kind of estate must be transferred
For the benefit to run, a smaller estate can be transferred

Horizontal: Grantor-grantee relationship (In England, only exists between LL and tenant)

Question 24

What is an equitable servitude? What is the remedy?

Answer 24

A covenant between parties enforceable at equity that binds the parties’ successors. The remedy is injunction

Question 25

What are the requirements for an equitable servitude?

Answer 25

Parties must intend to bind future successors

Promise touches and concerns the land (If you put in two average homeowners who are not subject to transaction costs, would they come to the same agreement?)

Notice

Question 26

What are the exceptions to the notice rule for ES?

Answer 26

Notice is required for the burden to run unless it was transferred for no consideration

Notice is not required for the benefit to run

Question 27

What are the three views to determine who can sue to enforce a subdivision scheme, once one is found?

Answer 27

MI view: When O conveys lot 1 of 6 and explicitly says that that lot is restricted, the other lots are restricted as well and everyone can sue everyone

MA view: Falls under SoF
Stating in one conveyance that the retained lots are also restricted binds those lots
Lots that do not fall under the SoF can sue restrained lots under 3PB

CA view: Falls under SoF and each deed determines what is created
When a deed is transferred, the benefits must be explicitly retained in order to have the right to sue

Question 28

What are the ways an ES can be terminated?

Answer 28

Restriction that conflicts with constitutional right and notice can only be acquired through Recording Acts

Changed conditions doctrine

Question 29

What is the changed conditions doctrine?

Answer 29

In a subdivision, if any of the interior lots benefit from the ES restriction, even if the effected (buffer) lots have diminished or no value, then the restriction is still valid

Question 30

What are the four remedies if someone sues on the changed conditions doctrine?

Answer 30

No one gets benefit from restricted lots abutting changed conditions (super rare)

Homeowners win because they benefit from buffer (happens a lot)

Society gets more value from commercial land, but split money with homeowners

Reverse damage situation: Occurs when no one foresees road increase and all lots cost the same $ initially, homeowners inside pay homeowners outside