Servitudes Flashcards
Easements generally
A grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land
Use the land for a specified purpose, but no right to possess or enjoy that land
Assumed to be of perpetual duration unless grant specifically limits the interest
Affirmative or negative
Appurtenant or in Gross
Affirmative easement
Most easements are affirmative
Right to go onto and do something on servant land
Negative easement
The negative easement entitles its holder to prevent the servant landowner from doing something that would others be permissible
Generally recognized in only four categories:
- light
- air
- support
- stream water from an artificial flow
Minority of states also allow a negative easement for scenic view
Creation of a negative easement
Negative easements can only be created expressly, by a writing signed by the grantor
Easement Appurtenant
Benefits its holder in his physical use or enjoyment of his own land
Two parcels of land must be involved
- dominant tenement - derives the benefit
- servient tenement - bears the burden
Easement in gross
Confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land
Servient land is burdened
No benefited or dominant tenement because it benefits the holder rather than another parcel
Common examples
- right to place a billboard on another’s lot
- right to swim in another’s pond
- utility company’s right to lay power lines on another’s lot
Easement appurtenant transferability
Passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance
- cannot be conveyed apart from the dominant tenement unless it is a conveyance of the easement to the owner of the servient tenement to extinguish the easement
Burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice of the easement
Easement in gross transferability
Not transferable unless it is for commercial purposes
Creating an easement generally
Basic methods:
- prescription
- implication
- necessity
- grant
Grant - easement creation
Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state’s SOF
- so ones that endure for greater than one year must be in writing to be enforceable and the writing must comply with all the formal reqs of a deed
Deed of easement
By implication - easement creation
Easements by implication are created by operation of law - exception to SOF
Two kinds:
- Easement implied from preexisting use - quasi-easement
- Easement implied without any existing use
Easement implied from preexisting use
Quasi-easement
For the court to imply an easement, would have to find
- the previous use on the servient part was apparent and continuous, and
- the parties expected that the use would survive because reasonably necessary to the dominant tenement’s use and enjoyment
Easement by necessity
Another form of easement by implication
Easement by necessity will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land
Owner of the servient parcel has the right to locate the easement
Imply easement by right of way
Easement creation - presciption
An easement may be acquired by analogy to adverse possession
Elements to acquire a prescriptive easement
- continuous and uninterrupted use for the given statute’s period
- open and notorious use: use discoverable upon inspection
- actual use that need not be exclusive
- hostile use: use without the servient owner’s consent
Generally, presumptive easements cannot be acquired in public land
Scope of easement
Scope is determined by the terms of the grant or the conditions that created it
If one is created but not specifically located on the servient tenement, an easement of sufficient width, heigh, and direction for the intended use will be implied
- owner can select it so long as their selection is reasonable
Cannot unilaterally expand an easement
Overuse / misuse of an easement
Does not terminate the easement
Appropriate remedy for the servient owner is an injunction against the misuse
Terminate an easement generally - 8 ways
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
Can also be terminated under its stated conditions
Terminating an easement - estoppel
An oral expression of an intent to abandon an easement won’t terminate an easement unless it’s also committed to writing or accompanied by action
But if the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations that it will no longer be enforced, the easement terminates through estoppel
Terminating an easement - necessity
Easements created by necessity expire as soon as the necessity ended
Unless the easement was reduced to an express grant
Terminating an easement - destruction
Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement
Terminating an easement - condemnation
Condemnation of the servient estate by governmental eminent domain will terminate the easement
Split on whether easement holders are entitled to compensation
Terminating an easement - release
A release given by the easement holder to the servient land owner will terminate the easement
Release must be in writing
Terminating an easement - abandonment
Physical action shows an intent to never use the easement again
Mere non-use or mere words are insufficient to terminate by abandonment
- but oral expressions combines with a long period of nonuse may be sufficient
Terminating an easement - merger
An easement is extinguished when title to the easement and title to the servient land become vested in the same person
Easement and servient land merge and the easement is destroyed
Once unity of ownership is no longer there, the easement is not automatically reinstated
Terminating an easement - prescription
A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession
- continuous interference
- open and notorious
- actual
- hostile to the easement holder
License generally
Mere privilege to enter another’s land for some delineated purpose
Not an interest in land - merely a privilege, revocable at the will of the licensor
Personal to the licensee and thus, inalienable
Creation of a license
A writing is not needed to create a license because not subject to SOF
A failed attempt to create an easement results in a license
- orally grants an easement for more than one year, unenforceable do no valid easement, but license
Revocation of a license
Freely revocable at the will of the licensor, unless estoppel applies to bar revocation
Ticket cases and neighbors talking by the fence
License - revocation and estoppel
Estopped will apply and bar revocation of a license only when the licensee has invested substantial money or labor in both reasonable reliance on the license’s continuation
License becomes an easement by estoppel - lasts until the holder receives sufficient benefit to reimburse him for expenditures
The profit
The profit entitles its holder to enter the servient land and take from it some resources
All rules governing creation, alienation, and termination of easements are applicable to profits
A profit may be extinguished through surcharge - misuse that overly burdens the servient estate
Covenants
Written promise to do or not do something related to land
Unlike the easement because it is not the grant of a property interest - a contractual limitation or promise regarding land
Negative and affirmative covenants
Negative / restrictive covenants
Restrictive covenant is a promise to refrain from doing something related to land
Most are restrictive
Promise not to build for commercial purposes
Affirmative convenants
Promise to do something related to land
Promise to maintain shared fence
Covenant vs equitable servitude
Can give rise to either a covenant or an equitable servitude
If seeking money damages, construe it as a covenant
If seeking equitable damages (injunction), construe the promise as an equitable servitude
Covenant running with the land generally
One tract is is burdened by the promise and another is benefited
Different requirements for burden than from benefit
Always start with burden because much harder to run with land
Burden of covenant running with land
If following requirements are met, any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it
Writing
Intent
Touch and concern
Horizontal and vertical privity
Notice
Covenants run with land - writing and intent
The original promise must have been in writing
And the original coveting parties must have intended that the covenant would run - intended that successors to the originally promising parties would be bound by the covenant
- intent can be inferred from circumstances surrounding the creation, but usually found in the language itself
- courts are generous in finding intent
Covenants run with land - touch and concern
The promise must affect the parties’ legal relations as landowners, and not simply as members of the community at large
- Restrictive touch and concern if they restrict the burdened parcel owner in her use of that parcel of land
- Affirmative touch and concern if they require the holder of the servient estate to do something that increases her obligations in connection with the land
- benefit of a covenant touches and concerns if the promised performance benefits the promisee and her successor in their use and enjoyment of the benefited land
Covenants to pay money to be used in connection with the land and covenants not to compete do touch and concern the land
Covenants run with land - horizontal and vertical privity
Both are required for the burden to run
Just vertical required for benefit to run
Horizontal: nexus between the original promising parties
- requires succession of estate: grantor/grantee, landlord/tenant, mortgagor/mortgagee when the covenant was created
- some interest in the land independent of the covenant
- usually will be if it was created when one party was selling the part to another
- difficult to establish
Vertical: nexus between successor in interest and the originally covenanting party
- just requires non-hostile nexus
- only time it will be absent is when the successor acquired her interest through adverse possession
Covenants run with land - notice
Successor must have had notice of the promise when she took
Because to be bound by a covenant, a subsequent purchaser for value must have had actual, inquiry, or record notice of the covenant at the time of purchase
Benefit of covenant running with the land
For the benefit of a covenant to run, need
- writing
- intent
- touch and concern
- vertical privity
Burden does not run but benefit does
If the burden party is still the original contracting party but the benefit side was transferred, the promisee’s successor can enforce the covenant against the original promisor
But burden party has successor and no horizontal privity, the promisee’s successor cannot enforce it against the promisor’s successor
Equitable servitudes generally
Promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land, unless the successor is a bona fide purchaser without notice
Accompanied by injunctive relief
Creation of an equitable servitude
Created by promises contained in a writing that satisfies the SOF
To create an equitable servitude that will bind successors,
- writing
- intent: original parties intended that the promise would be enforceable by and against successors
- touch and concern
- notice: burdened party for purchase needs notice and this req is separate from recording act
No privity of estate is required for an equitable servitude to be enforceable by and against assignees
Implied equitable servitude - general or common scheme doctrine
An exception to the writing requirement for a equitable servitude to run with land
Under common scheme doctrine, the court will imply a reciprocal negative servitude (implied equitable servitude) to hold the unrestricted lot holder to the promise
- subdivides land, some deeds contain it and some don’t
Two elements:
- when the sales began, the subdivider had a general scheme of residential development which included the defendants lot, and
- the defendant lot holder had notice of the promise contained in the prior deeds when it took
Scheme cannot arise after some lots are sold to create an implied servitude
Notice - three forms
Actual notice: defendant had literal knowledge of the promises contained in the prior deeds
Inquiry: neighborhood seems to conform to the common restriction - lay of the land
Record notice: form of notice sometimes imputed to buyers on the basis of the publicly recorded documents
Equitable defenses to an equitable servitude
A court will not enforce an equitable servitude if the neighborhood conditions have changed so significantly that enforcement would be inequitable
Changes must be so persuasive that the entire area or subdivision has changed as to obviate the very purpose of the restriction
