Servitudes

Question 1

Easement

Answer 1

• 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

Question 2

Easement appurtenant

Answer 2

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)

Question 3

Easement in gross

Answer 3

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

Question 4

Affirmative easement

Answer 4

Entitles its holder to make affirmative use of the servient estate

Question 5

Negative easememt

Answer 5

• 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

Question 6

Scope of easements

Answer 6

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

Question 7

Scope of easements-Expansion

Answer 7

• 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

Question 8

Scope of easements-Duty to repair

Answer 8

• 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

Question 9

Easement by grant

Answer 9

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

Question 10

Easement by reservation

Answer 10

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

Question 11

Express easements

Answer 11

• 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

Question 12

Easement by prescription

Answer 12

• 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

Question 13

Easement by implication

Answer 13

• 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

Question 14

Easement by implication-Exceptions

Answer 14

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)

Question 15

Easement by necessity

Answer 15

• 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

Question 16

Termination of easements

Answer 16

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

Question 17

License

Answer 17

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

Question 18

Profit

Answer 18

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

Question 19

Covenant

Answer 19

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

Question 20

Real covenant

Answer 20

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

Question 21

Covenants-Termination

Answer 21

Can occur by:
a) Written release,
b) Merger of benefited and burdened estates, or
c) Condemnation of burdened property

Question 22

Covenants vs. Equitable servitudes

Answer 22

Difference is the remedy
* Covenant: money damages
* Equitable servitude: injunction

Question 23

Requirements for burdens of covenant to run with land

Answer 23

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

Question 24

Horizontal privity

Answer 24

Relationship between the covenanting parties
-e.g. grantor/grantee, landlord/tenant, fee ownership/easement right in same land, mortgagor/mortgagee

Question 25

Vertical privity

Answer 25

Relationship between covenanting parties and their successors in interest
-e.g. contract, devise, descent

Question 26

Requirements for benefits of covenant to run with land

Answer 26

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

Question 27

Equitable servitudes

Answer 27

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

Question 28

Equitable servitudes-Creation

Answer 28

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

Question 29

Equitable servitude-Defenses to enforcement

Answer 29

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

Question 30

Reciprocal negative servitudes

Answer 30

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

Question 31

Reciprocal negative servitudes-Common scheme

Answer 31

• 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

Question 32

Reciprocal negative servitudes-Notice

Answer 32

• 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