servitudes Flashcards
What is a servitude?
A right or an obligation that ‘runs with the land’.
What are affirmative servitudes?
Rights to use another’s land for a limited purpose, known as easements.
What are negative servitudes?
Restrictions with respect to what owners can do with their own land, known as covenants.
What is the difference between servient and dominant estates?
Servient estate is burdened; dominant estate is benefited.
What does transferability in servitudes imply?
People can creatively use their land<> leading to burdensome deals, has to search for any servitudes exist before making a deal– transferability in real estate market
What does autonomy in servitudes imply?
Neighbors can freely agree on terms; promises by previous sellers can strain current owners.
What is an easement?
Rights to use another’s land for a limited purpose, known as affirmative servitudes.
informally created easement
easements by prescription (Brown v. Gobble)
affirmative use of property belonging to another that is
“open and notorious”;
adverse or hostile(without permission);
Continuous and exclusive; and
Lasted until the statutory period for trespass expires.
limited to narrow use of another’s land rather than actual possession of it.
informally created easement
easements by estoppel(Lobato v. Taylor(mexico))
affirmative use of property belonging to another that is
With permission from the owner(license);
Foreseeable that the user would reasonably rely on the continuation of that permission;
User changed her position (often via investments) in reliance on continuation of permission; and
(easement is) Necessary to prevent injustice
no longer revokable permission
informally created easement
What is an easement by necessity? and what is majority/minority court’s view?
Occurs when one parcel owned by the grantor is subdivided, making the dominant estate landlocked.
- majority: holds that the ultimate purpose of the rule is to effectuate the grantor’s intent (when he sold the proeprty, and the grantee knew she was buying it)
- minority: the strict necessity is the only element which is implied as a matter of law irrespective of the true intent of grantor
informally created easement
what is implied easement by prior apparent use
- two parcels were previously owned by a common grantor is subdivided
- One parcel was used for the benefit of the other in an apparent and continuous manner; and
- Use is ‘reasonably necessary’ or ‘convenient’ for enjoyment of dominant estate.(Granite properties v. Mann(shopping center))
List ways an easement can be terminated.
- Agreement
- By their own terms
- Merger
- Abandonment
- Adverse possession
- Frustration of purpose.
What is an appurtenant easement?
If the benefit runs with a particular parcel of land.
formal creation of easements
What are the requirements for easements created by express agreement running with land?
appurtenant easement
- The easement is in writing;
- Subsequent owners of the servient estate had notice at the time of purchase; and
- The original grantor intended the easement to run with the land.
Subsequent owners of the servient had notice at the time of purchase
Define actual notice in terms of servitude.
formal creation of easements
Actual (in fact) knowledge of the easement.
Subsequent owners of the servient had notice at the time of purchase
What is inquiry notice?
formal creation of easements
A reasonable buyer would investigate further to discover whether an easement exists if there are visible signs of use by non-owners.
Subsequent owners of the servient had notice at the time of purchase
Define constructive notice.
(=record notice), formal creation of easements
If the deed conveying the covenant/easement is recorded properly, and if a reasonable search would lead to the discovery of deeds, then subsequent owners are deemed to be on a constructive notice.
What is an easement in gross?
If the benefit attaches to a person or entity rather than a parcel of land, easement is in gross.
What is a covenant?
Allows one to compel another to refrain from doing something on her own land or to do something on her own land;
Restrictions with respect to what owners can do with their own land, known as negative servitudes.
Differentiate between real covenants and equitable servitudes.
- Real Covenants: enforceable via $ damages/ Some jurisdictions instead focus on horizontal/vertical privity: relation between original parties, legal transfer(though fading in influence)
- Equitable Servitudes: enforceable by injunction/ Notice required (even with lack of privity)
Both requires writing complying with statute of frauds, intent to run with land, touch and concern the land(direct effect on use or value of land; fading in influence)
What are covenants in multiple-owner developments?
Expansion of covenants in common interest developments.
What does “implied” mean in implied reciprocal negative servitudes?
Covenants in multiple-owner developments
implied: (1)In the absence of an express restriction, (2) if lots were developed under a common plan and (3) the servient owner had legally effective notice of the restriction at the time the owner purchased the lot
What is the significance of reciprocal in implied reciprocal negative servitudes?
Covenants in multiple-owner developments
Benefits and burdens are the same.
Implied reciprocal negative servitudes
What does servitude imply in terms of relationships?
Covenants in multiple-owner developments
A contractual type of relationship; bound by other people’s promises they are related to the same parcel of land.
