Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Real property > Servitudes > Flashcards

Servitudes Flashcards

1
Q

Types of servitudes

A
  1. Affirmative easements
  2. Negative easements
  3. Real covenants
  4. Equitable servitudes
  5. Reciprocal negative servitudes (General Scheme Doctrine)
    * The license
    * The profit
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Affirmative easements: method of creation

A
  1. Prescription
  2. Implication
  3. Necessity
  4. Grant
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Affirmative easements: parties bound

A
  1. Easement appurtenant = transferred automatically with dominant tenement.
  2. Easement in gross for commercial purposes = assignable.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Affirmative easements: remedy

A

Injunction or damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Negative easements: method of creation

A

Created only by writing signed by grantor.

Applies only to:

  1. Light
  2. Air
  3. Support
  4. Streamwater
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Negative easements: remedy

A

Injunction or damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Real covenants: method of creation

A

Writing signed by grantor.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Real covenants: parties bound

A

Burden of promise will run to successor of burdened lot IF:

  1. Writing
  2. Intent
  3. Touch and concern
  4. Vertical privity
  5. Horizontal privity, and
  6. Notice.

Benefit of promise will run to successor of benefited lot IF:

  1. Writing
  2. Intent
  3. Touch and concern
  4. Vertical privity.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Real covenants: remedy

A

Damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Equitable servitudes: method of creation

A

Writing signed by grantor

* UNLESS implied by General Scheme Doctrine.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Equitable servitudes: parties bound

A

Successors bound IF:

  1. Writing
  2. Intent
  3. Touch and concern
  4. Notice to successors of burdened land
  • (Privity not required.)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Equitable servitudes: remedy

A

Injunction.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Reciprocal negative servitudes (General Scheme Doctrine): method of creation

A

Majority view: In a subdivision, residential restrictions contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction IF:

  1. At start of subdividing,
  2. Grantor had a common scheme, and
  3. Unrestricted lot holders had notice.
  • Minority rule: subsequent grantees are not bound unless their lots are expressly restricted in writing.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Reciprocal negative servitudes (General Scheme Doctrine): parties bound

A

Where common scheme exists, subsequent purchasers with notice are bound.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Reciprocal negative servitudes (General Scheme Doctrine): remedy

A

Injunction.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Easements defined

A

The grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Affirmative easements

A

Right to do something on servient land.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Negative easements

A

Negative easement holder is entitled to prevent the servient landowner from doing something that would otherwise be permissible.

Generally recognized in only 4 categories:

  1. Light
  2. Air
  3. Support
  4. Streamwater from an artificial flow
  • Can only be created expressly, by writing signed by the grantor.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Easement appurtenent

A

Benefits the holder in his physical use or enjoyment of his property.

  • A dominant tenement gets the benefit and a servient tenement bears the burden.
  • Easement is always appurtenant to the DOMINANT land.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Easement in gross

A

Confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.

  • The servient land is burdened, but there is no benefited or dominant land.
  • E.g., placing a billboard, fishing or swimming in another’s pond, power company laying power lines on another’s land.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Easement appurtenant: transferability

A

Appurtenant easement passes AUTOMATICALLY with the dominant tenement, regardless of whether it is even mentioned in the conveyance.

  • Easement appurtenant passes automatically with the servient estate, UNLESS the new owner is a bona fide buyer w/o notice.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Easement in gross: transferability

A

Easement in gross is not transferable UNLESS it is for commercial purposes.

23
Q

Affirmative easements: creation by grant

A

An easement to endure for more than 1 year must be in a writing that complies with the formal elements of a deed.

  • (Because of the Statute of Frauds.)
  • The writing to evidence the easement is called a deed of easement.
24
Q

Affirmative easements: creation by implication

A

Easements may be implied from existing use IF:

  1. The previous use was apparent, and
  2. The parties expected that the use would continue because it is reasonably necessary to the dominant land’s use and enjoyment.
25
Q

Affirmative easements: creation by necessity

A

The landlocked setting: an easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of the grantor’s remaining land.

26
Q

Affirmative easements: creation by prescription

A

An easement may be acquired by satisfying the elements of adverse possession:

  1. Continuous use for the given statutory period
  2. Open and notorious use
  3. Actual use
  4. Hostile use (w/o servient owner’s consent)
27
Q

Scope of an easement

A

Determined by the terms of the grant or the conditions that created it.

28
Q

Termination of an easement

A
  1. Estoppel
  2. Necessity
  3. Destruction of servient land
  4. Condemnation of servient estate
  5. Release
  6. Abandonment
  7. Merger doctrine
  8. Prescription
29
Q

Termination of an easement: estoppel

A

Servient owner materially changes his position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced.

30
Q

Termination of an easement: necessity

A

Easements created by necessity expire as soon as the need ends.

  • BUT if the easement, attributable to necessity, was nonetheless created by express grant, it does not end when the necessity ends.
31
Q

Termination of an easement: destruction of servient land

A

Destruction of the servient land, other than through willful conduct of the servient owner, ends the easement.

32
Q

Termination of an easement: condemnation of the servient estate

A

Condemnation of the servient estate (by eminent domain) ends the easement.

33
Q

Termination of an easement: release

A

A written release by the easement holder to the servient owner terminates the easement.

34
Q

Termination of an easement: abandonment

A

The easement holder must demonstrate by PHYSICAL ACTION the intent to NEVER use the easement again.

  • Mere nonuse or words are insufficient to abandon.
35
Q

Termination of an easement: merger doctrine

A

The easement is extinguished when title to the easement and title to the servient land become vested in the same person.

  • (a.k.a. “unity of ownership”)
  • If complete unity of title is achieved, the easement is extinguished. Even if there is later separation of title, the easement is not revived.
36
Q

Termination of an easement: prescription

A

The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession:

  1. Continuous interference
  2. Open and notorious
  3. Actual
  4. Hostile to the easement holder
37
Q

The license

A

A mere privilege to enter another’s land for a delineated purpose (very informal).

  • Not subject to the Statute of Frauds.
  • Licenses are FREELY REVOCABLE at the will of the licensor, unless estoppel applies to bar revocation (only when licensee has invested substantial money, labor, or both in reasonable reliance on the license’s continuation).
38
Q

When does estoppel apply to bar revocation of licenses?

A

Only when licensee has invested substantial money, labor, or both in reasonable reliance on the license’s continuation.

39
Q

Classic license cases

A
  1. Tickets: tickets create freely revocable licenses.
  2. Neighbors talking by the fence: an oral easement creates a freely revocable license (because otherwise would violate the Statute of Frauds).
40
Q

The profit

A

The profit entitles its holder to enter the servient land and take the soil or some substance of the soil, such as minerals, timber, oil.

  • The profit shares all the rules of easements.
41
Q

The covenant defined

A

The covenant is a promise to do or not do something related to land.

  • It is unlike the easement because it is not the grant of a property interest, but rather a CONTRACTUAL LIMITATION or promise regarding land.
  • Can be negative (restrictive covenants) or affirmative.
  • One tract is burdened by the promise and one is benefited.
42
Q

Analysis for whether covenant runs with the land (and can bind successors):

A
  1. Does the burden of A1’s promise to B1 run from A1 to A2?

2. Does the benefit of A’s promise to B1 run from B1 to B2?

43
Q

Covenants: does the burden run with the land?

A

Elements necessary:

  1. Writing: promise must be in writing
  2. Intent: the original parties intended that the covenant would run
  3. Touch and concern the land
  4. Vertical privity
  5. Horizontal privity
  6. Notice: A2 had notice of the promise when she took
44
Q

Covenants: horizontal privity

A

Nexus between the original parties.

Must be in "succession of estate"—
1. grantor-grantee
2. landlord-tenant
3. mortgagor-mortgagee
relationship.
45
Q

Covenants: vertical privity

A

Nexus between A1 and A2—some non-hostile nexus such as contract, devise, or descent (not adverse possession).

46
Q

Covenants: touch and concern the land

A

The promise must affect the parties’ legal relations as landowners and not simply as members of the community at large.

  • Covenants to pay money to be used in connection with the land (such as homeowners’ association fees) and covenants not to compete DO touch and concern the land.
47
Q

Covenants: does the benefit run with the land?

A

(I.e., does B2 have standing to make this claim.)

Elements:

  1. Writing: the original promise must be in writing
  2. Intent: the original parties intended that the benefit would run
  3. Touch and concern the land
  4. Vertical privity
48
Q

Equitable servitudes defined

A

A promise that equity will enforce against successors.

  • Accompanied by injunctive relief.
49
Q

Equitable servitudes: forms of notice

A
  1. Actual notice
  2. Inquiry notice
  3. Record notice
50
Q

Equitable servitudes: actual notice

A

∆ had literal knowledge of the promises in the prior deeds

51
Q

Equitable servitudes: inquiry notice

A

Constructive notice when neighborhood conforms to the common restriction (the lay of the land).

52
Q

Equitable servitudes: record notice

A

Constructive notice on buyers on the basis of the publicly recorded documents.

  • Good courts: subsequent buyer does not have record notice of the contents of the prior deeds transferred to others by the common grantor.
  • Bad courts: subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor.
53
Q

Equitable defenses to enforcement of an equitable servitude

A

Changed conditions.

The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed.

  • Mere pockets of limited change is insufficient.

Real property (14 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions