Servitudes Flashcards
What is an easement?
The grant of a nonpossessory property 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 that would otherwise be permissible; ONLY recognized in 4 categories: Light, Air, Support (underground), Streamwater from artificial flow (irrigation); must be in writing signed by grantor
2) Can either be apurtenant to land OR held in gross. Easement appurtenant to dominant tenement: directly benefits property of dominant tenement. Must have 2 parcels of land - a dominant tenement that gets the benefit and a servient tenement that bears the burden. Transfer: passes automatically w/ dominant tenementEVEN if not mentioned in the conveyance; 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 for 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
How do you create an affirmative easement?
Under “P-I-N-G” circumstances…
1) Prescription: acquired by satisfying the elements of adverse possession = C-O-A-H; Continuous use for statutory period (NYS: 10 yrs); Open/notorious; Actual use and Hostile (no permission) ***permission defeats the acquisition of an easement by prescription
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
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?
You “E-N-D C-R-A-M-P”…
1) Estoppel: servient owner materially changes his/her position in reasonable reliance 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 the servant 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 PHYSICAL ACTION the intent to never use the easement again. NOTE: Mere NON-USE of the easement is NOT enough to create abandonment
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) 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). Also, the duration of the servient estate must be equal to or longer than the duration of the dominant estate (and therefore the easement).
8) Prescription: interference w/ easement in accordance w/ the elements of adverse possession= C-O-A-H
What is a license?
A mere privilege, freely revocable (unless estoppel applies), to enter land for a delineated purpose (weakest of the servitudes family). Not subject to SOF so no writing req. Classic cases… 1) Tickets (e.g. movie) 2) Neighbors “taking at the fence”: an oral “easement” creates instead a revocable license
Estoppel applies ONLY when licensee has invested substantial $/labor in reasonable reliance
What is a profit?
Name for an easement that entitles holder to enter servient land AND take from it the soil or substance of the soil such as minerals, timber, oil
What is a covenant?
The covenant is a promise to do or not do something related to land. UNLIKE an easement it does not grant a property interest, but rather a K or promise regarding land. Two types of covenants 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 sevitude?
IF… 1) π seeks monetary damages =covenant 2) 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) Note, homeowners assn. fees and covenants not-to-compete DO touch and concern the land. 4) Horizontal AND vertical privity are needed. Horizontal privity refers to the nexus b/t orginal parties A & B requiring that they’d be in sucession of estate (i.e. grantor-grantee; landlord-tenant; mortgager-mortgagee) <> Vertical privity refers to nexus b/t A & A-1, which requires some non-hostile nexus (i.e. K, devise, decent, but NOT adverse possession) 5) Notice: burdened present party must have notice of promise when he took land
Benefit (easy): To run, you’d need “W-I-T-V”… 1) Writing: see above 2) Intent: see above 3) Touch and concern land: see above 4) Vertical privity(ONLY): see above
How do you create an express equitable servitude?
To create an equitable servitude that will BIND successors, there must be 1) Writing: orginal promise was in writing 2) Intent: original parties intended for promise to run and bind successors 3) Touch and concern the land: the promise mut affect parties as landowners 4) Notice: the assignee of burdened land had notice of promise
PRIVITY is not necessary!
What is the general or common scheme doctrine?What is the equitable defense?
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 .
Two elements of the general or common scheme doctrine:
1) When the sales began, subdivider had general development scheme embodied in deed restriction 2) Purchaser of lot had notice of restrictions contained in the prior deeds.
Changed Conditions is an equitable defense to enforcement of an equitable servitude. 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. Pockets of limited 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 (albiet 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?
The 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
What is an equitable servitude?
A promise that equity will enforce against successors. It is accompanied by injunctive relief.
