Servitudes Flashcards
Profit a Pendre
Rights to take off the land, things that were thought of as part of the land (timber, minerals, game, fish)
Servitude
Agreements to burden one parcel of land for the benefit of the other, creates interest in land, binding and benefitting not only the parties to the agreement but also their successors
Affirmative easement
Easement granted by the servient owner, to another for the right to enter or perform an act on servient land
Negative easement
Easements forbidding one landowner from doing something on his land that might harm a neighbor
- Blocking windows (light)
- Interfering with air flow to your land in a defined channel
- Removing the support of your building
- Interfering with the flow of water in an artificial stream
Easement appurtenant ( if easement unclear, law construes in favor of this kind)
Gives right to whomever owns a parcel of land that the easement benefits
- requires dominant and servient tenement
- transfers with dominant tenement to successive owners
- benefits and burdens pass automatically to assignees of the land to which they are appurtenant, if the parties so intend and the burdened party had notice of the easement
Easement in gross
Gives right to some person without regard to ownership of land
- servient estate only
- transferable but not assignable
- may be divided unless contrary to the intent of the parties creating the easement or unless the division increases the burden on the servient estate
Easement by implication/ easement by necessity/ quasi easement
Necessity must be present at the time that the property was transferred and there was probity of estate between dominant and servient tenements
- the easement is implied when the court finds the claimed easement necessary to the enjoyment of the claimants land and that the necessity arose when the claimed dominant parcel was severed from the claimed servient parcel
- parties to a Conveyance may be assumed to intend the continuance known to them
- quasi is based on an apparent and continuous use of a portion of the existing tract
Easement by prescription
Only arises when the person claiming easement did not have permission to be there (exclusive use)
- open and notorious
- continuous
- under claim of right
Lost grant theory
To secure prescriptive easement, the claimant must show that the use was not permissive and also that the owner acquiesced (did not object)
Conservation easement
An owner of land can give a public body or a private charitable organization a conservation easement, preventing the servient owner from building on the land except as specified in the grant
Facade easement
A device preventing the facade of a house registered on the national registrar of historic places from being altered
Real covenants (enforceable at law) ➡️ privity issues
- created by written instrument
- a promise respecting the use of land that runs with the land at law (burden and benefit run with estates)
- horizontal and vertical privity
- can be negative(restricting use) or affirmative promise
- cannot be enforced against assignee who has no notice of it
- burdens the estate
Equitable covenants ➡️ notice issues
Burdens the land itself not the estate
- may be implied in equity, arises out of a promise
- requires that parties intend the promise to run, that a subsequent purchaser have actual or constructive notice, of the covenant and that the covenant touch and concern the land
- no need for horizontal privity and it may run to adverse possessors
License
A oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass
- revocable
- irrevocable if coupled with an interest or because if rules of estoppel ➡️ treated as an easement
Servitude by estoppel
An investment in improvements either to the servient estate or to other land of the investor
