Servitudes Flashcards
What is an easement?
Nonpossessory interest entitling holder (dominant tenement) to some use of another’s land (servient tenement)
1) Can either be affirmative OR negative
Affirmative: go onto servient land and do something
Negative: bar servient landowner from doing something; ONLY”L-A-S-S” types, which must be in writing/sighed…
Light; Air; Support (underground);
Streamwater from artificial flow (irrigation)
2) Can either be apurtenant to land OR held in gross
Easement appurtenant to dominant tenement: directly benefits property of dominant tenement (i.e. must be 2 pieces of property)
Transfer: passes automatically w/ land trnfrEVEN w/o mention; except if purchaser of servient land is BFP w/o NOTICE
Easement in gross: personal pecuniary benefit to holder, NOT land(e.g. put up a billboard; swim in another’s pond).
Transfer: NOT transferable UNLESS commercial purpose (e.g. using a lake for fishing to benefit a tuna fish company)
3)Scope of easement: limited to terms of creation; no unilateral expansion
NOTE: If one goes beyond scope, the servient landowner may enjoin the use.
How do you create an affirmative easement?
“P-I-N-G” circumstances…
1) Prescription: acquired b/c of adverse possession
Adverse possession = C-O-A-H = - Continuous use for statutory period (NYS: 10 yrs);
- Open/notorious;
- Actual use;
- Hostile (no permission)
2) Implication: requiring (i) use that’s apparent; AND (ii) parties expect survival of easement b/c it’s reasonably necessary to the dominant tenement’s use/enjoyment
3) Necessity:if grantor conveys landlocked tenement easement will be implied (NOTE: the grantor can CHOOSE where to locate the easement)
4) Grant: An easement that endures for more than 1 yr MUST be in writing (to satisfy SOF) that complies w/ the formal elements of a deed (deed of easement) Can and SHOULD be recorded
What are the 8 methods toterminate an easement?
“E-N-D C-R-A-M-P”
1) Estoppel: servient owner detrimentally reasonably relies on dominant owner’s assurance of easement termination
2) Necessity: easement created by necessity ends when necessity ends, UNLESScreated by express grant
3) Destruction of servient land: w/ no fault of of the servient owner
4) Condemnation of servient land: by eminent domain
5) Release: written release given by the easement to the servient owner
6) Abandonment: the easement holder must demonstrate by affirmative action the intent to never use the easement agains
NOTE: Mere NON-USE NOT enough to create abandonment; you need an AFFIRMATIVE ACT, showing intent to abandon
7) Merger doctrine (aka unity of ownership): the easement is extinguished when title to easement and title to servient land become vested in the same person
NOTE:remains extinguished even if title is separated
Duration of the servient tenement must be equal to or longer than the duration of the easement
For merger to apply, both pieces of land must be vested in the same person, in the SAME manner (i.e. NOT fee simple absolute & a life estate)
8) Prescription: interference w/ easement according action
Prescription= C-O-A-H (sans exclusivity requirement of adverse possession)
Continuous use for statutory period (NYS: 10 yrs);
Open/notorious;
Actual USE w/ NO requirement of exclusivity;
Hostile (no permission)
What is a license?
A mere privilege, freely revocable (unless estoppel applies), to enter land for a delineated purpose (weakest of the servitudes family)
May or may not be for consideration
Classic cases…
1) Tickets (e.g. movie)
2) Neighbors “taking at the fence”: when oral “easement” violates SOF, becomes license
Estoppel applies ONLY when licensee has invested substantial $/labor in reasonable reliance
E.g.: An oral attempt to create a perpetual easement
What is a profit?
Name for an easement that entitles holder to enter servient land AND take from (i.e. from soil or substance of soil)
Minerals, timber, oil
Termination: When surcharged
What is a covenant?
A K limitation/promisere: land, but does NOT grant property interest (like an easement)
One tract of land is “burdened by the promise and another is benefited”
Two types…
1) Restrictive (Negative) covenant: promise to refrain from doing something related to land (e.g. not build commercial bldg)
2) Affirmative covenant: promise to do something related to land (e.g. maintain a fence)
What is the difference b/t a covenant and an equitable servitude?
1) IF π seeks monetary damages =covenant
2) IF π seeks injuction/equitable relief =equitable servitude
When will a covenant “run with the land” (i.e. benefitting successors)?
First analyze BURDEN side then BENEFIT side…
Burden (hard): To run, you’ d need “W-I-T-H-N”…
1) Writing: the original promise has to be in writing
2) Intent: original parties intended covenant to run
3) Touch & concern land: the promise must affect the parties’ legal relations as landowners (and NOT simply as members of public at large)
E.g., homeowners assn. fees; covenant not-to-compete DO touch/concern
4) Horizontal AND vertical privity Horizontal privity refers to the nexus b/t original parties A & B requiring that they’d be in succession of estate (i.e. grantor-grantee; landlord-tenant; mortgager-mortgagee) <
1) Writing: see above
2) Intent: see above
3) Touch and concern land: see above
4) Vertical privity(ONLY): see above
What is an equitable servitude?
A promise concerning land that EQUITY will enforce against successors (accomplished by injunctive relief)
How do you create an express equitable servitude?
To create an equitable servitude that will BIND successors, there must be “W-I-T-N-E-S”…
1) Writing: original promise was in writing
2) Intent: original parties intended for promise to run and bind successors
3) Touch and concern the land: the promise must affect parties as landowners
4) Notice: the assignee of burdened land had notice of promise =
5) Equitable
6) Servitude
PRIVITY is not necessary!
What is the general or common scheme doctrine?
NOTE: NY Distinction
Creates an IMPLIED equitable servitude in a subdivision where the ct will IMPLY a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant
To enforce an implied covenant on unencumbered land, MUST SHOW…
1) Subdivider had general development scheme embodied in deed restriction
2) Purchaser of lot had notice of restriction (A-I-R)
Actual notice: ∆ had literal knowledge of the promises in the prior deeds
Inquiry notice: by sight development obviously conforms to restriction
Record notice: imputed to buyer who doesn’t check publicly recorded documents (NOT NY)
Defense allowing RELEASE from enforcement of equitable servitude:
Changed condition:pervasive changed conditions to ENTIRE area/subdivision (NOTE: mere pockets of ltd change is NOT sufficient)
What is adverse possession?
Possession, for a statutorily prescribed pd of time, can, if certain elements are met, ripen into TITLE
What are the elements of adverse possession?
NOTE: NY Distinctions
C-O-A-H…
1) Continuous: uninterrupted for thestatutory period
NY DISTINCTION: Statutory pd = 10yrs
NOTE: A tenant in common in exclusive possession req’s 20 yrs to adversely possess
2) Open and notorious:type of possession the owner wouldmake
3) Actual and exclusive POSSESSION: it’s got to be a LITERAL entry that’s EXCLUSIVE
4) Hostile: the possessor doesn’t have owner’s PERMISSION to be there (possessor’s subjective state of mind–knowing one is on another’s land–is IRRELEVANT)
NY DISTINCTION: the possessor must have a good faith belief (albeit a mistake one) that the land occupied is INDEED his
What is tacking?
One adverse possessor may “tack” on his time with the land his predecessor’s time, SO LONG AS there is privity, which is satisfied by ANY non-hostile nexus (i.e. blood, K, deed, will)
Tacking is NOT allowed when there is ouster
How can an owner’s disability affect adverse possession?
SOL on an adverse possession claim will NOT run against a true owner who is afflicted by a disability (i.e. infancy, insanity, imprisonment) AT THE START of the adverse possession
CANNOT TACK!!!!!
