Servitudes

Question 1

Easement

Answer 1

an irrevocable right to utilize a portion of another’s real property for a specific use.

Question 2

Servient and dominant estates

Answer 2

• Property that is burdened by the easement is the servient estate
• Property benefited by the easement is the dominant estate

Question 3

profit a prendre

Answer 3

right to enter another’s land without liability for trespass and remove thing constituting a natural part of the land; a person with a profits interest has an easement to venture onto the property as necessary to enjoy the profits interest

Question 4

affirmative easement

Answer 4

easements granted by a servient owner, gave a neighbor the right to enter or perform an act on the servient land

Question 5

Negative easements

Answer 5

easements forbidding one landowner from doing something on his land that might harm a neighbor

Question 6

Easement apputenant

Answer 6

can give that right to whomever owns the parcel of land the easement benefits (connected to land)

Question 7

Easement in Gross

Answer 7

gives that right to some person without regard to ownership of land (connected to person)

Question 8

Easement by grant (writing) in favor of 3rd party

Answer 8

CL doesn’t recognize validity of 3rd party who is stranger, but nnoawadays some do. CL is majority rule: Willard v. 1st Church of Christ Scientist. easement during church hours. Property sold, then Willard learned of the easement and sued to quiet title. Willard. He lost bc cl frustrates grantor intent and delivers windfalls to grantor.

Question 9

License

Answer 9

oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass; resembles easement but permission revocable

Question 10

Easement by estoppel

Answer 10

License is irrevocable if licensee reasonably relies on it to make substantial improvements.

Question 11

Holbrook v. Taylor

Answer 11

License for use of road to reach property, which was later used to construct home. Holbrook blocked road with cable. Ct held for Taylor bc license was relied on to construct home and he made improvements to roadway. Holbrook knew why it was being used.

Question 12

easement by implication

Answer 12

1) prior existing use - property divided by common owner and prior to division, one portion of the property used in easement fashion for the benefit of another part of the property
2) necessity - where property has been divided by common owner in such a manner than an easement for access is necessary

Question 13

Van Sandt v. Taylor

Answer 13

Prior existing use easement - sewer ran across 2 lots. Split into 3 lots and sold. One of the 3 woke up with sewer in basement and sued that easement not valid. Ct found easement - reasonable necessity, formally owned then divided, servient owner aware of use, continuous apparent

Question 14

elements of easement implied from prior existing use

Answer 14

common owner, reasonable necessity (reasonably nexessary for use and enjoyment), continuous use, intended continuation (parties intend to continue prior use), existing use (must exist at time of division), apparent (doesn’t have to be visible (van sandt v royster)

Question 15

Easement implied from necessity

Answer 15

Implied either because the parties must have intended this result, or bc its economically efficient and socially beneficial to create an easement for access (only for right of way - ingress and egress b/w landlocked parcel and road). Can only be created over property owned by the person who also owned the landlocked parcel and who divided the property to create access problem. Necessity must exist at moment property is divided. No prior use is needed to establish an easement by necessity. IT lasts as long as necssity exists.

Question 16

Othen v. Rosier

Answer 16

No easement by necessity bc when land was divided no showing the prior conveyance landlocked his land.

Question 17

public trust doctrine

Answer 17

Derives from CL principle that land covered by tidal waters belongs to the sovereign. Courts often use balancing test like Matthews factors in Raleigh Ave Beach Assn: o Matthews factors: 1)location of the dry sand areas in relation to the foreshore (easily reached by pedestrians), 2) extent and availability of publicly owned upland sand area (coast guard area closed much of the summer season) , 3)nature and extent of public demand (tourism is huge), 4)usage of the upland sand by the landowner (permit issued based on allowing public access and it was used that way for many years)

Question 18

Miller v. Lutheran Conference and Camp Assn.

Answer 18

Bathing rights by prescriptive use. Easement in gross was a commercial easement intended to be transferable. Easement in gross became title by prescription though adverse enjoyment. Frank an Rufus invested lots of money.

Transferability of commercial easements is efficient and reflects the probable intentions of the parties.

Main point: CL rule where easements in gross aren’t assignable has evolved. (reflected in 3rd rest.)

Question 19

Brown v. Voss

Answer 19

Although the appeals court was correct to conclude that any physical enlargement of the dominant estate was wrongful, an injunction shouldn’t be issued bc there was no evidence of irreparable harm to voss from the enlargement (traditionally need irreparable harm for injuction)

Question 20

difference b/w equitable servitude and covenants

Answer 20

• Real covenant = damages, writing (ties into SoF - no estoppel, implication, or prescription)), ITN, sometimes horizontal; usually need horizontal and vertical privity
• Eq. Serv = injunction; may be implied; ITN; don’t need privity

Real covenant attaches to estate in land, and eq servitude burdens the land itself.

Question 21

how do you enforce an equitable servitude

Answer 21

WITN –writing (maybe), intent (promise to be enforceable, touch and concern the land (affects parties as landowners), notice (horizontal and vertical privity doesn’t matter)

Question 22

how do you enforce a real covenant

Answer 22

burden - WITN plus horizontal privity and vertical privity b/w successive owners; benefit - WITN and only vertical privity

Question 23

tulk v. moxhay

Answer 23

leicester square case. Covenant not to build upheld bc purchaser Moxhay had notice, touched and concern, intention to bind successors.

Question 24

Sanborn v. McLean

Answer 24

Gas station case. Negative Eq. Servitude (Implied reciprocal servitude) not to build commercially was implied bc housing was simila (common development scheme), so gave constructive notice (majority rule in US now). Eliminates requirements, and keeps only ITN (intent, touch and concern, and notice).

Sanborn = tar sand = oil

Question 25

Implied reciprocal covenant

Answer 25

(or reciprocal negative easement) - reciprocal in that the common scheme contemplates covenants burdening all lots for reciprocal benefit, and negative bc it restricts land use rather than requiring an affirmative act or use.

Question 26

Equity’s requirements:

Answer 26

1)intent that the benefit and/or the burden runs to the successors of the original parties, 2)notice on the part of the puchasers of the original promisor, 3) that the covenant touch and concern land

Question 27

Neponsit

Answer 27

Does HOA touch an concern? yes, bc condition of buying the property - legal relationship is inseparable from the land

Question 28

change location of easement

Answer 28

servient owner has the right to change the location of the easement, at his expense, if the change does not significantly lessen the utility of the easement, increase the burden on the owner of the easement in its use and enjoyment, or frustrate the purpose for which the easement was created

Question 29

Ways an easement can be terminated:

Answer 29

1. Easement owner may release the easement
2. Easement may end through expiration at the end of stated period
3. Defeasible easement: expires automatically if and when a specific event occurs
4. Easement of necessity ends when the necessity it gives rise to ends
5. Ends by merger if the easement owner later becomes the owner of the servient estate
6. End through estoppel if the servient owner reasonably relies upon a statement or representation by the easement owner
7. End by abandonment, non-use does not constitute abandonment- ends by abandonment upon non-use for the statutory period of time
8. End by condemnation if the government exercises its eminent domain power to take title to a fee interest in the servient estate for a purpose that is inconsistent with the continued use of the easement.
9. End by prescription if the servient owner wrongfully and physically prevents the easement from being used for the prescriptive period

Question 30

Notice (covenant enforcement)

Answer 30

inquiry, constructive, actual

Question 31

How long are covenants enforceable?

Answer 31

If it’s provisions remain of substantial value. (Rick v. West - only 2 houses under residential scheme sold, so developer wanted to sell lots to a hospital. Developer lost. Ct will enforce restrictive covenants unless there is a substantial change of conditions in the neighborhood. Ct will not balance the equities).

Question 32

Nahrstedt v. Lakeside Villiage Condo

Answer 32

Lakeside Cats. Lady wants to keep her cats in condo against common interest community rules. HOLDING - Reasonableness standard. A restriction contained in the declaration of the common interest community is presumed to be reasonable and will be enforced uniformly against all residents of the common interest development unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy

Question 33

Standards of Judicial review of covenants

Answer 33

1) business judgement rule - defers to good faith decisions by boards of directors in business settings,
2) reasonableness standard - restrictions enforced unless they are wholly arbitrary, violate pp, or impose burden on affected land outweighs benefit (Nahrstedt)
3) reasonableness test - no strong presumption of validity; balancing utility of restriction’s purpose versus harms from its enforcement