Servitudes Flashcards
Affirmative Easements: creation
PING
1) Prescription: adverse possession elements COAH
a) use that is continuous, open and notorious,
b) actual under a claim of right that is hostile for request statutory period
2) Implication:
a) implied from prior use,
b) at time land is severed,
c) a use of one part existed from which it can be inferred that an easement permitting its continuation was intended
3) Necessity: division of a tract deprives 1 lot means of access out
4) Grant: writing signed by grantor, complies with formal elements of deed (SOF)
Affirmative Easements: parties bound
1) easement appurtenant is transferred automatically with dominant tenement and with servient tenement unless the new owner is a BFP w/out notice
2) easement in gross only transferable for commercial purposes
Affirmative Easements: remedy
injunction or damages
Negative Easements: creation
LASS 1) Light 2) Air 3) Support 4) Streamwater (artificial) Can be created only by writing signed by grantor
Negative Easements: remedy
injunction or damages
Real Covenants: remedy
damages
Real Covenants: parties bound, burdens
burden of promise will run to successor of burdened lot if following requirements are met: WITHN
1) writing: between the original parties
2) intent: the original parties intended that the covenant would run (courts are generous here)
3) touch and concern: promise must affect the parties legal relations as landowners, not just community at large
4) horizontal and vertical privity
5) notice: successor must have notice when took
Real Covenants: parties bound, benefits
Benefit of promise will run to successor of benefited lot: WITV
1) Writing: between original parties
2) Intent: for the covenant to run
3) Touch and concern: effects the parties as landowners
4) vertical privity
Real Covenants: creation
Writing signed by grantor
Equitable Servitudes: creation
1) Writing signed by grantor
2) unless implied by General Scheme Doctrine
Equitable Servitudes: parties bound
Successor bound if WITNes:
1) writing: generally but not always
2) intent: parties intended promise would bind successor
3) touch and concern: promise effects parties as landowners
4) notice: the successor of the burdened land had notice
NOTE: no privity required
Equitable Servitudes: remedies
injunction
Reciprocal Negative Servitudes (General Scheme Doctrine): creation
Majority:
In a subdivision, residential restriction contained in a prior deed, conveyed by common grantor will bind subsequent grantees even if deeds don’t have the restrictions if:
1) At start of subdividing grantor had
2) common scheme that included the lot at issue
3) unrestricted lot holders had notice of the promise contained n the prior deeds: AIR
a) actual notice: literal knowledge of the promises
b) inquiry notice: neighborhood conforms to common restriction
c) record notice: form of notice sometimes imputed to buyers on the basis of publicly recorded documents (SPLIT IN COURTS)
Minority:
1) no binding of subsequent grantees unless their lots are expressly restricted in writing
Reciprocal Negative Servitudes (General Scheme Doctrine): parties bound
Where common scheme exists, subsequent purchasers with notice are bound
Reciprocal Negative Servitudes (General Scheme Doctrine): remedy
Injunction
Easement: definition
1) grant of nonpossessory property interest
2) entitles its holder to some form of use or enjoyment
3) of the servient tenement
Affirmative Easement: definition
Right to do something on servient land
Negative Easement: definition
Entitles holder to prevent servient landowner from doing something that would otherwise be permissible.
Limited to LASS: light, air, support, streamwater (artificial) (minority add view)
Easement Appurtenant: definition
1) benefits its holder
2) in physical use or enjoyment of his property
“It takes two baby”
Dominant tenement
gets the benefit of the easement
Servient tenement
suffers the burden of the easement
Easement in Gross: definition
1) confers upon holder
2) some personal or pecuniary advantage
3) not related to use or enjoyment of his land
NOTE: no benefited or dominant tenement
(Billboard: eat bean you never have to stop for gas)
Easement: Scope
1) determined by terms of grant OR conditions that created it
2) no unilateral expansion allowed
Easement: Termination
END CRAMP
1) Estoppel: servient owner materially changes position in reasonable reliance on easement holder’s assurances that easement will not be enforced
2) Necessity: expire as soon as the need ends
3) Destruction of servient land, other than by the willful conduct of the servient owner
4) Condemnation of the servient estate
5) Release: a written release given by easement holder to the servient holder
6) Abandonment: easement holder must demonstrate by physical action the intent to never use the easement again
7) Merger: title to the easement and title to the servient land become vested in the same person, even if separate again easement is dead and not revived
8) Prescription: servient owner may extinguish the easement by interfering with it in accordance with the elements of AP (COAH)
License: definition
A mere privilege to enter another’s land for a delineated purpose
License: things to know
1) not subject to SOF
2) freely revocable at will of the licensor unless estoppel applies (substantial $, labor, or both)
3) oral easements turn into licenses b/c violate SOF
Profit: definition
Entitles holder to enter the servient land and take the soil or some substance of the soil
EXAMPLES: oil, minerals, timber
Shares all the rules of easements!
Covenant: definition
1) promise to do or not do
2) something related to land
3) unlike an easement b/c it is not the grant of a property interest, but rather a contractual limitation or promise regarding land
Affirmative Covenant: definition
promise to do something related to land
Negative Covenant: definition
1) also known as restrictive covenants
2) promise to refrain from doing something related to land
Covenant v. Equitable servitude
look at remedy, covenant = $$ damages, equitable servitude = injunction
Horizontal privity
Nexus between original parties meaning succession of estate.
EXAMPLES: grantor/grantee, landlord/tenant, mortgagor/mortgagee
NOTE: very difficult to establish and where must covenants fail
Vertical privity
Requires some non-hostile nexus such as contract, devise, descent.
NOTE: only time absent is if acquired title through AP
Equitable servitude: definition
promise that equity will enforce against successors
Equitable servitude: Defenses to enforcement
changed circumstances: so persuasive that the entire area has changed (mere pockets of change not enough)
Adverse Possession: required for title
COAH
1) Continuous: uninterrupted for statutory period
2) Open and Notorious: sort of possession the usual owner would make under the circumstances
3) Actual: entry must be literal
4) Hostile: the possessor doesn’t have owner’s consent to be there
NOTE: possessor’s state of mind irrelevant
Adverse Possession: Tacking
1) may tack so long as there is privity
2) privity satisfied by non-hostile nexus
3) examples of nexus: blood, contract, deed, will
4) NOT allowed where there has been ouster
Adverse Possession: Disabilities
1) SOL will not run
2) against owner with disability
3) at start of the AP
EXAMPLES: insanity, infancy, imprisonment
