Servitudes Flashcards
Easement
- A non-possessory property interest that confers a right to use another’s land
-Servient estate = burdened land
-Dominant estate = benefited land (not always applicable) - Creation: easements may be created by prescription, implication, necessity, or expressly by grant or reservation
Easement appurtenant
Entitles a dominant estate owner to use a servient estate’s land
-Attaches to the dominant estate and passes automatically (even if not mentioned in a conveyance)
Easement in gross
Entitles an individual or entity (not a dominant landowner) to use the servient estate
-Attaches only to servient estate; there is no dominant estate
-E.g. right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond
-Similar to a license, but irrevocable; may be transferred
Affirmative easement
Entitles its holder to make affirmative use of the servient estate
Negative easememt
- Entitles its holder to prevent or restrict the servient landowner/estate from engaging in otherwise permissible actions/activities on his own land
- Four categories of acts may be prevented:
1) Light
2) Air
3) Subjacent or lateral support
4) Stream of water from an artificial flow - Creation: can only be created by express grant (writing signed by grantor)
- Note: restrictive covenants are utilized more frequently than negative easements to prevent a landowner from engaging in certain activities on their land
Scope of easements
An easement’s scope is determined by the terms or conditions that created it
-In interpreting an easement’s scope, courts will consider the reasonable intent of the original parties
Scope of easements-Expansion
- Easement holder cannot unilaterally expand the scope of their easement (e.g. through overuse or misuse)
-Overuse or misuse of an easement does not terminate the easement - Remedy for violation = injunction or damages
Scope of easements-Duty to repair
- Easement holder has a duty to make repairs if he is the sole user
- If both the servient landowner and the easement holder use an easement, the repair costs are apportioned
Easement by grant
An express grant of the easement
-Created by instrument (e.g. written agreement) in which the servient estate owner gives easement to owner of dominant estate
Easement by reservation
Grantor conveys title to land but reserves the right to continue using the land for a designated purpose
* Grantor may only reserve an easement for himself
-Void if reserved for the benefit of another
-E.g. O conveys property to A, reserving an easement allowing access to a path across the property
Express easements
- Easements may be expressly created by grant or reservation
- Requirements: express easements must be:
1) In writing (otherwise will violate SOF); and
2) Signed by the servient estate holder
Easement by prescription
- A process of acquiring an easement; similar to acquiring title by adverse possession
- Requirements: acquirer’s use of another’s land must be:
1) Continuous: for the applicable statutory period
2) Open and notorious: owner knows or should know of use
3) Actual
4) Hostile: without owner’s permission
Note: an easement can also be terminated by prescription if the servient landowner interferes with the easement sufficiently to satisfy the above requirements
Easement by implication
- An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots
- Requirements:
1) Easement exists prior to division of a single tract of land;
2) Common grantor’s use is continuous and apparent;
3) Use is reasonably necessary for enjoyment of the dominant tenement; and
4) Parties intended the use to continue after division of the land
Easement by implication-Exceptions
Easement may be implied without prior use where:
a) Subdivision plat: lots in a subdivision are sold with reference to a map plan, or
b) Profit a prendre: holder of a proft a prendre has an implied easement to pass over the land’s surface as reasonably necessary to extract materials ( e.g. wood, coal)
Easement by necessity
- An easement can arise if access to or from a property is impossible without the easement (i.e. the easement’s existence becomes necessary)
- Creation: usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to a public road or ultility
-The owner or the servient estate can choose a reasonable location for the easement - Termination: expires automatically when the necessity ends
Termination of easements
Easements may be terminated in any one of the following ways:
1) Estoppel: where servient owner reasonably relies on an easement’s holder’s conduct or representations indicating an intent to abandon the easement; non-use is insufficient
2) Necessity ends: easements by necessity expire when the need that created them ends
3) Destruction of servient tenement: unless destruction results from willful conduct of the servient owner
4) Release: easement holder can terminate the easement by giving a deed of release to the servient tenement owner
5) Abandonment: easement is terminated if its holder physically demonstrates an intent to permanently abandon it (mere words or non-use or insufficient)
6) Merger: easement terminates automatically if one person acquires title of both the easement and the servient land (re dividing the merged title will not revive easement)
7) Presscription: servient owner may extinguish an easement by interfering with it using elements of adverse possession
8) Expiration: if easement was established for a set term, or to expire upon stated conditions, expiration of the term or occurrence of the stated conditions will terminate easement
License
A right to use another person’s (licensor’s) land, which is revocable at the licensor’s will
* E.g. oral permission for neighbor to use licensor’s pool, theatre tickets (grant license to ticket holders), right to use parking lot
* Not an interest in land: license is a privilege, not an interest in land (distinguish from affirmative easement)
* Revocable: licensor may revoke the privilege at any time, unless estoppel applies
* Inalienable: may not be assigned or transferred (any attempt to do so revokes the license)
* No SOF requirement: a license may be oral or written; they can result from easements that are invalid under the SOF
-E.g. an oral grant of a permanent easement between neighbors may result in a license because SOF not satisfied
Profit
A non-possessory property interest entitling its holder to enter a servient estate to remove resources (e.g. minerals, timber, soil, fish)
-All rules governing easements apply to profits (i.e. creation, transferability, and termination)
-Extinguishment: a profit may be extinguished through misuse or overuse of resources on the servient estate
Covenant
A promise to do or refrain from doing something related to land
-A contractual limitation or promise regarding land
-Note: covenants are not property interests
Real covenant
A covenant concerning real property
* Runs with the land at law: subsequent owners may be burdened by the covenant or may enforce it
-Different requirements apply for burdens and benefits running with the land
* Affirmative covenant: a promise to do something related to land
* Restrictive covenant: a promise to refrain from doing something related to land
Covenants-Termination
Can occur by:
a) Written release,
b) Merger of benefited and burdened estates, or
c) Condemnation of burdened property
Covenants vs. Equitable servitudes
Difference is the remedy
* Covenant: money damages
* Equitable servitude: injunction
Requirements for burdens of covenant to run with land
1) Writing: original covenant was in writing
2) Intent: parties intended to bind successors in interest
-Look to language of the covenant; courts are liberal in construing requisite intent
3) Touches and concerns the land: covenant must affect parties’ legal relations as landowners (a very low standard)
-Homeowner association fees satisfy this requirement
4) Horizontal and vertical privity: must exist between interested parties
5) Notice: successor in interest had notice of the covenant when she took her interest
Horizontal privity
Relationship between the covenanting parties
-e.g. grantor/grantee, landlord/tenant, fee ownership/easement right in same land, mortgagor/mortgagee
Vertical privity
Relationship between covenanting parties and their successors in interest
-e.g. contract, devise, descent
Requirements for benefits of covenant to run with land
1) Writing: original covenant was in writing
2) Intent: original parties intended benefit to run with land
-Look to language of the covenant; courts are liberal in construing requisite intent
3) Touches and concerns the land: the covenant must affect parties’ legal relations as landowners (a very low standard)
4) Vertical privity: successors in interest are in vertical privity with the original covenanting parties (e.g. through contract, devise, or descent)
-Horizontal privity is not required for majority of states
Equitable servitudes
Equitable servitudes are covenants enforced in equity against successors through injunctive relief (i.e. injunction is the remedy)
-I.e. a covenant that will be enforced against successors of the burdened land who have notice of the covenant
-Privity is not required to bind successors
Equitable servitudes-Creation
1) Writing: written promise
-Exception: reciprocal negative servitudes may be implied from a common scheme for development of a residential subdivision
2) Intent: original parties must intend to bind successors
3) Touches and concerns the land
4) Notice: successors of the burdened land had notice
-Notice not required for benefit to run
Equitable servitude-Defenses to enforcement
A court will not enforce an equitable servitude if any of the following conditions exist:
1) Pervasive changes in the neighborhood
2) Estoppel
3) Acquiscence
4) Unclean hands
5) Laches
Reciprocal negative servitudes
If land is subdivided into parcels under a common development scheme, with only some parcels having negative servitudes, these restrictions may be impliedly binding against all subdivided parcels
* Allows lot owners to enforce restrictions on the use of property against other subdivision lot owners (enforced through injunction)
* Note: usually arises on exam where an owner divides land into smaller lots to create a common development scheme/subdivision
* k.a. “reciprocal negative easement” or “implied reciprocal servitude
Reciprocal negative servitudes-Common scheme
- Common scheme: developer evidenced intent to create a negative servitude under a common scheme for all subdivided parcels
- Common scheme may be evidenced through:
a) Recorded plat
b) General pattern of restrictions, and/or
c) Oral representations to early buyers
Reciprocal negative servitudes-Notice
- Notice: owner of the subject lot had notice of the restriction in the deeds of other subdivision lots
- Notice may be one of 3 types:
a) Actual: literal knowledge of restriction
b) Inquiry: neighborhood character indicates a common restriction, or
c) Record: chain of title for the owner’s lot includes a prior deed containing a negative covenant/servitude
