Servitudes

Question 1

What are the 5 categories of servitudes?

Answer 1

Licenses; Easements; Equitable servitudes; Profits; and Covenants

Question 2

Define easement.

Answer 2

Right to a non-possessory property interest in land that entitles the owner to use or enjoyment of the land.

Question 3

Define dominant estate.

Answer 3

Land/property that benefits from the easement.

Question 4

Define servient estate.

Answer 4

Land burdened by the easement.

Question 5

Define affirmative easement.

Answer 5

Gives holder the right to affirmatively use the servient estate (i.e. to do something on the servient estate).

Question 6

Define negative easement.

Answer 6

Prevents servient estate from doing something it would otherwise be allowed to do on the land. Only allowed for ‘LASS’: Light; Air; Support; and Stream water from an artificial flow.

Question 7

How are negative easements created?

Answer 7

Only expressly - must be signed and in writing.

Question 8

Define easement appurtenant.

Answer 8

Benefits one parcel of land (dominant estate) while burdening another (servient estate). Attached to the land and not a person.

Question 9

Define easement in gross.

Answer 9

Benefits a person or entity instead of a parcel of land. No dominant estate involved, only servient estate. Ex. Billboard or power lines on servient estate.

Question 10

Can you transfer: An easement appurtenant? Easement in gross?

Answer 10

Yes, transferred automatically b/c attached to the dominant estate. Does not need to be explicitly stated in the transfer. Not transferrable unless for commercial purpose.

Question 11

What are 4 ways in which an affirmative easement can be created?

Answer 11

Prescription; Implication; Necessity; or Grant (signed in writing). Remember ‘P-I-N-G’.

Question 12

2 ways to create an express easement?

Answer 12

Grant: express grant of easement, signed and in writing by servient estate to satisfy SOF (if easement could exist for longer than one year). Reservation: grantor conveys title, but reserves right to easement.

Question 13

How do you create an easement by prescription?

Answer 13

Similar to acquiring land by adverse possession. Use of easement must be: Continuous; Open; Hostile; and Actual. No exclusivity requirement.

Question 14

What is an easement by implication and how is it created?

Answer 14

Easement implied by prior use. Exists when: Easement existed on a single tract of land that was subsequently severed into the servient and dominant estate; Prior use was continuous and apparent; Parties intended the easement to continue; and Easement is reasonably necessary for enjoyment of dominant estate.

Question 15

When can an easement be implied without prior use?

Answer 15

If lots are sold in a subdivision with a recorded plat or map. If holder has a profit-à-prendre that makes it necessary to use the land to extract materials.

Question 16

What is an easement by necessity and how is it created?

Answer 16

Easement is absolutely necessary to access the property. Created if: Dominant and servient estates were once a single parcel under common ownership; and Severance of the parcel made the easement absolutely necessary.

Question 17

How do you determine the scope of an easement?

Answer 17

Terms or conditions that created it.

Question 18

What constitutes expanding the scope of an easement? Is it allowed?

Answer 18

Overusing the easement or going outside the scope of reasonable use. No, not allowed to unilaterally expand the scope. Servient estate can seek injunction to prevent further violations.

Question 19

When can the owner of an easement seek contribution for repairs?

Answer 19

Only after providing adequate notice and an opportunity for co-owners to participate in repair decisions.

Question 20

What are the 9 ways to terminate an easement?

Answer 20

Abandonment; Destruction of servient estate; Estoppel; Expiration; End of necessity; Merger; Prescription; Release; or Severance.

Question 21

When does destruction of the servient estate NOT terminate an easement?

Answer 21

If servient owner willfully caused the destruction.

Question 22

How do you terminate an easement by prescription?

Answer 22

Continual interference with the easement for the statutory period.

Question 23

How do you terminate an easement by abandonment?

Answer 23

Holder takes affirmative action/steps to indicate intent to abandon; and Actually abandons easement. Mere words or nonuse are insufficient to terminate easement.

Question 24

How do you terminate an easement by estoppel?

Answer 24

Easement holder leads servient estate to reasonably believe they intend to abandon the easement; and Servient estate detrimentally relies on the holder’s statements.

Question 25

How do you terminate an easement by severance?

Answer 25

For an easement appurtenant, any attempt to sever the easement from the dominant estate will sever the easement.

Question 26

How can you terminate an easement by merger?

Answer 26

Owner acquires fee title of underlying estate (i.e. same owner owns both the easement and the servient estate). The easement will 'merge' into the title and not be revived unless by new express grant.

Question 27

When is an easement by necessity automatically terminated?

Answer 27

When the necessity ends.

Question 28

What happens if property is sold to bona fide purchaser without notice of the easement?

Answer 28

Easement is unenforceable against the BFP.

Question 29

Define profit (âprofit a? prendre).

Answer 29

Non-possessory right to enter servient estate and remove natural resources from it. Generally governed by the same rules as easements. Ex. lumber, coal, soil.

Question 30

How is a profit terminated?

Answer 30

Misuse or overuse of natural resources.

Question 31

Define license.

Answer 31

Freely revocable, non-possessory right to use the land.

Question 32

Is a license transferrable?

Answer 32

No, will result in loss of license.

Question 33

Differentiate between a license and an easement.

Answer 33

Licenses: Freely revocable (unless detrimental reliance or coupled with interest). Privilege, not an interest in land. Can be created without consideration or writing (no SOF requirement). Easements: Last for specific period or indefinitely. Interest in land. Must satisfy SOF.

Question 34

Define covenants.

Answer 34

Servitudes that either restrict landowners from doing certain things or impose obligations on them.

Question 35

Define real covenants.

Answer 35

Covenants concerning real property that 'run with the land' (i.e. bind successors).

Question 36

Differentiate between an affirmative vs. negative covenant.

Answer 36

Affirmative: requires landowner to do something. Negative: forbids landowner from doing something.

Question 37

What is required for the burden of a covenant to run with the land?

Answer 37

Writing: original agreement in writing; Intent: parties intended to bind successors (courts are liberal in finding requisite intent); Touches and concerns the land; Horizontal and vertical privity; and Notice: successor had notice of the covenant when she took.

Question 38

What is required for the benefit of a covenant to run with the land?

Answer 38

Writing: original agreement in writing; Intent: parties intended benefit to run; Touches and concerns the land; and Successor is in vertical privity with original parties. Horizontal privity is not required.

Question 39

What does it mean for a covenant to 'touch and concern' the land?

Answer 39

Covenant affects both parties as landowners, not as individuals (very low bar).

Question 40

Define horizontal privity.

Answer 40

Relationship between original covenant parties. Examples: Grantor-grantee, Mortgagor-mortgagee, Landlord-tenant. Note: Difficult to establish.

Question 41

Define vertical privity.

Answer 41

Relationship between original party and successor (contract, descent, devise).

Question 42

What is the remedy for the breach of a covenant?

Answer 42

Monetary damages.

Question 43

Are racially based covenants enforceable?

Answer 43

Never, would violate 14th Amendment.

Question 44

How do you terminate a covenant?

Answer 44

Release (in writing); Merger; or Condemnation.

Question 45

Define equitable servitudes.

Answer 45

Covenants enforced by equity (e.g. injunctions).

Question 46

Elements for an equitable servitude.

Answer 46

Writing: original agreement in writing; Intent: original parties must intend to bind successors; Touches and concerns the land; Notice: burdened party had actual, record, or inquiry notice (not required for benefit to run).

Question 47

What is an implied reciprocal negative servitude and what are the requirements?

Answer 47

Also called the 'common scheme doctrine.' Allows owners in a subdivision to enforce restrictions on an unrestricted lot owner. Requirements: When sales began, developer had a common scheme for subdivision; and Owner of unrestricted lot had notice (actual, record, or inquiry) of the restriction.

Question 48

What is evidence of a common scheme?

Answer 48

Recording a map detailing the scheme; Putting restrictions in lot deeds; or Letting purchasers know about the plan orally.

Question 49

For the purposes enforcing a reciprocal negative servitude, what is: Actual notice? Inquiry notice? Record notice?

Answer 49

Actual: Literal knowledge of restriction. Inquiry: Reasonable neighborhood inspection would indicate common restrictions (i.e. all houses are single family homes). Record: Restriction is in owner’s chain of title.

Question 50

What are defenses to enforcement of equitable servitudes?

Answer 50

Pervasive changes that fundamentally alter the neighborhood; Laches; Estoppel; Acquiescence (when party didn’t enforce the servitude on other parties, so their right to enforce may be waived); Unclean hands (party seeking enforcement is violating restriction on their own land).

Question 51

What is the remedy for the breach of an equitable servitude?

Answer 51

Injunction.

Question 52

Define nuisance.

Answer 52

Unreasonable interference with use and enjoyment of land.