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Property > Servitudes > Flashcards

Servitudes Flashcards

1
Q

What is a servitude?

A

A non-possessory property interest that involves 2 or more parcels of land.

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2
Q

What is an easement?

A

A right to use another person’s land for some specific purpose.

You cannot create an easement on your own land.

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3
Q

What is a profit?

A

A right to enter someone’s land and remove something attached to that land.

Ex: minerals, soil, trees, etc.

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4
Q

What is an affirmative easement?

A

An easement that gives the easement holder the right to use the land of another for a stated purpose.

Ex: right of way, sewer line, water line, etc.

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5
Q

What is a negative easement?

A

The right of the dominant owner to stop the servient owner form doing something on the servient land, that would otherwise be privileged.

Usually treated as equitable servitudes.

Ex: unobstructed view, unobstructed light for solar collectors, conservation easements

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6
Q

What is an easement appurtenant?

A

An easement that gives the right to whomever owns a parcel of land that the easement benefits.

Benefits the owner in the use of the land.

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7
Q

What is an easement in gross?

A

An easement that benefits the easement owner personally rather than in connection to the land.

Ex: utility easements

Do NOT have a dominant estate, only a servient one.

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8
Q

What is a dominant estate?

A

The estate that is benefitted by the easement.

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9
Q

What is the servient estate?

A

The estate that is burdened by the easement.

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10
Q

What is the duration of an easement?

A

Assumed to be perpetual unless stated otherwise.

An easement can be in fee simple, for life, or for a term of years.

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11
Q

What is the difference between a grant and a reservation for easements?

A

Grant: used to create an easement for the benefit of the grantee’s parcel

Reservation: used to reserve an easement for the benefit of the grantor

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12
Q

What is an express easement?

A

An easement in writing - usually in the deed itself.

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13
Q

What are the two types of implied easements?

A
  1. From prior existing use (quasi-easement)
  2. Based on necessity
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14
Q

What are the requirements for an implied easement from prior existing use?

A
  1. Prior existing use under common ownership followed by severance of title
  2. Use must be apparent
  3. Use must be continuous
  4. Use must be reasonably necessary

A owned parcels 1 & 2. A sold parcel 2 to B. A continues to use B’s driveway for ingress and egress, but only in the middle of the night when B was asleep. B never knew of A’s use.

A owned parcels 1& 2. A sold parcel 2 to B. A continues to use B’s driveway to transport their Christmas tree once a year.

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15
Q

What are the requirements for an implied easement based on necessity? When does it terminate?

A
  1. Common ownership followed by severance of title
  2. Use must be STRICTLY necessary
  • an easement by necessity terminates when the use is no longer strictly necessary.
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16
Q

What is an easement by prescription? What are the requirements?

A

Similar to the principle of adverse possession, but for easements.

  1. Open and notorious use
  2. Hostile and adverse use (without the owner’s permission)
  3. Continuous and uninterrupted use for the statutory period
17
Q

How can an owner prevent a prescriptive easement?

A

The owner must interrupt the adverse use.

Ex: giving notice that the use is not permitted, and the owner intends to dispute any claims to the use

18
Q

What is the scope of a prescriptive easement?

A

Use must be within the kind for which the easement was created and that the servient owner might reasonably expect.

Not as broad as express or implied easements.

Ex: a prescriptive easement acquired for pedestrian use or to herd livestock CANNOT be used by motor vehicles

19
Q

What is a license?

A

Oral or written permission by the occupant of the land, allowing the licensee to do some act that would otherwise be trespass.

An easement that fails to meet the SoF requirements.

A license is revocable.

20
Q

Under what circumstances is a license irrevocable?

A
  1. When it is coupled with an interest
  2. Based on estoppel
21
Q

How long does an irrevocable license last?

A

As long as it is reasonably necessary.

22
Q

What is the principle of reasonable development in regards to the scope of easements?

A

An easement’s scope of use can change to accommodate reasonable development of the dominant tenement.

Ex: a farmer buys 100 acres and has an easement for ingress and egress. If the armer then develops his land into 100 1-acre homesites, it is NOT reasonable that the 100 homesites can use the easement.

23
Q

Can an easement be used to benefit property other than the dominant tenement?

A

No, use by other property is considered excessive and may be enjoined.

24
Q

Who has the responsibility of maintaining and repairing the easement?

A

The dominant tenement / easement holder.

25
Q

What are the six ways that an easement can be terminated?

A
  1. Merger (tenements come under one ownership)
  2. Release
  3. Estoppel
  4. Abandonment
  5. Expiration (ex: necessity)
  6. Prescription (by servient tenement owner)
26
Q

What are the two categories of covenants?

A
  1. Real covenants
  2. Equitable servitudes
27
Q

What is a real covenant?

A

A promise respecting the use of the land that runs with the land, at law.

An action for monetary damages.

28
Q

What is an equitable servitude?

A

A covenant respecting the use of the land that runs with the land, enforceable in equity.

An action for an injunction.

29
Q

What is horizontal privity?

A

Privity between the original parties to an agreement.

30
Q

What is vertical privity?

A

Privity that passes to successive owners.

31
Q

What are the traditional requirements for the burden to run with the land?

A
  1. Writing
  2. Intent
  3. Touch and concern the land
  4. Vertical privity (real covenant)
  5. Horizontal privity (real covenant)
  6. Notice
32
Q

What is the third-party beneficiary doctrine for equitable servitudes?

A

Servitude benefits can be created in persons who are not otherwise parties to the transaction.

33
Q

How can a covenant be terminated?

A
  1. Merger of title
  2. Written release
  3. Estoppel
  4. Acquiescence
  5. Changed conditions doctrine
  6. Unclean hands doctrine
  7. Laches doctrine
34
Q

What is the changed conditions doctrine for termination of a covenant?

A

To nullify a restrictive covenant, the changes to the land must be so radical as to practically destroy the essential objectives and purposes of the agreement.

35
Q

What is the unclean hands doctrine for termination of a covenant?

A

A plaintiff cannot enjoin a servitude that they have previously violated.

36
Q

What is the laches doctrine for termination of a covenant?

A

There cannot be an unreasonable delay by the plaintiff to enforce the servitude.

Property (9 decks)

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