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
