Servitudes

Question 1

What is an easement?

Answer 1

Defined: the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called servient tenement (Common examples: the privilege to lay utility lines on another’s land; the easement giving its holder the right of access across a tract of land)

Question 2

What is an affirmative easement?

Answer 2

The right to do something on servient land - i.e. Utility lines, access across a tract of land; Go out and do something on anothers land

Question 3

What is a negative easement?

Answer 3

The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in only four categories (LASS):

1. Land
2. Air
3. Suport
4. Stream water and artificial flow
   * NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY, BY WRITING SIGNED BY THE GRANTOR. THERE IS NO NATURAL OR AUTOMATIC RIGHT TO A NEGATIVE EASEMENT

Question 4

An easement is either appurtenant to land or it is held in gross; What is an appurtenant easement?

Answer 4

The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property. How will you know when you’ve got an easement appurtenant? - It takes two - Two parcels of land must be involved, a dominant tenement gets the benefit and a servient tenement bears the burden

Question 5

An easement is either appurtenant to land or it is held in gross; What is an easement held in gross?

Answer 5

The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, servient land is burdened. However, there is no benefited or dominant tenement - EXAMPLES: The right to place a billboard on anothers land, the right to fish or swim in anothers pond, power co’s right to lay power lines on anothers land

Question 6

When and how does the easement appurtenant pass (transferability)?

Answer 6

Passes with the dominant tenement, no matter if it is mentioned in the conveyance
EXAMPLE: A has an easement entitling her to cut across B’s lawn to get more easily to her land - This is an easement appurtenant
Now A sells her parcel to Mr. X, with no mention of the easement. Does Mr. X enjoy the easement? - Yes it passes with the dominant tenement
Note that the burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser, with no actual or constructive notice of the easement

Question 7

When and how does the easement in gross pass (transferability)?

Answer 7

An easement in gross is not transferable UNLESS it is for commercial purposes
EXAMPLE: A has an easement entitling her to swim in B’s lake - this is an easement in gross and is not transferable,, at the same lake, Starkist has an easement to use B’s lake to fish for bait for Starkist’s tuna company - This is an easement in gross and it is transferable because it is for commercial purposes

Question 8

What are the different methods to create an affirmative easement?

Answer 8

PING

1. By Grant
2. By Implication
3. By Necessity
4. By Prescription

Question 9

How do you create an easement by grant?

Answer 9

An easement to endure for more than one year must be in writing that complies with the formal elements of a deed.
This is because of SOF. The writing to evidence the easement is called a deed of easement

Question 10

How do you create an easement by implication?

Answer 10

Created by operation of law; it is an exception to the SOF; There are 3 types:
1. Easement implied from existing use (“Quasi Easement”) - May be implied if:
i - Prior to the division of a single tract
ii - An apparent and continuous use exists on the “servient” part
iii - It is reasonably necessary for the enjoyment of the dominant part
iv - The court determines that the parties intended the use to continue after the division of the land
2. Easement implied without any existing use
3. Easement by necessity - When one owner sells and the leaves the other owner without access to public roads or goods (landlocked setting, no way out)

Question 11

How do you create an easement by prescription?

Answer 11

By meeting the requirements of adverse possession COAH

1. Continuous
2. Open and notorious
3. Actual use
4. Hostility
   * Permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile

Question 12

What is the scope of an easement is determined by?

Answer 12

The terms of the grant or the conditions that created it; EXAMPLE: A grants B an easement to use A’s private road to get to and from B’s parcel, Blackacre. B has an easement appurtenant, A has a servient tenement - Subsequently, B purchases the adjacent Greenacre, with its small marina. May B unilaterally expand the use of the easement to benefit Greenacre? - No - may not expand unilaterally

Question 13

What are the ways you can terminate an easement?

Answer 13

END CRAMP
E = Estoppel
N = Necessity 
D = Destruction of the servient land, other than through the willful conduct of the servient owner
C= Condemnation of the servient estate
R = Release
A = Abandonment
M = Merger doctrine
P = Prescription

Question 14

How can you terminate an easement by estoppel?

Answer 14

The servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced.
EXAMPLE: A tells B that A will no longer be using her right of way across B’s parcel. In reasonable reliance, B builds a
swimming pool on B’s parcel, thereby depriving A of the easement. In equity: A is estopped from enforcing it

Question 15

How can you terminate an easement by necessity?

Answer 15

Easements created by necessity expire as soon as the need ends; HOWEVER, if the easement, attributable to necessity, was nonetheless created by express grant does not end when the necessity ends

Question 16

How can you terminate an easement by Destruction of the servient land, other than through the willful conduct of the servient owner?

Answer 16

This is self explanatory

Question 17

How can you terminate an easement by Condemnation of the servient estate

Answer 17

This is an example of eminent domain, if the govt. buys this ends the easement

Question 18

How can you terminate an easement by release?

Answer 18

A written release, given by the leaseholder ends the rights to the servient owner

Question 19

How can you terminate an easement by abandonment?

Answer 19

The easement holder must demonstrate by physical action the intent never to use the easement again; *Abandonment requires physical action by the easement holder

Question 20

How can you terminate an easement by the Merger Doctrine (AKA “Unity of Ownership)?

Answer 20

The easement is extinguished when title to the easement and title to the servient land become vested in the same person, the easement dies, it cannot revive without affirmative action

Question 21

How can you terminate an easement by prescription?

Answer 21

Same elements as adverse possession - COAH

1. Continuous
2. Open and notorious
3. Actual use
4. Hostility to the easement holder

Question 22

What is a license?

Answer 22

A mere privilege to enter anothers land for a delineated purpose

• Licenses are not subject to the statute of frauds and so you do not need a writing to create a license
• Licenses are freely revocable at the will of the licensor unless estoppel applies
• *Estoppel may only be used when a substantial amount of money or labor has been invested or used

Question 23

What is the rule concerning easements and profit?

Answer 23

The profit entitles its holder to enter the servient land and take from it e.g. - The soil, or some substance of the soil
Minerals, timber, oil Can enter and take something from it

Question 24

What is a covenant?

Answer 24

A covenant is a promise to do or not to do something to the land It is UNLIKE the easement because it is not the grant of a property interest, but rather a contract; obligation or promise regarding land

Question 25

What is a negative covenant (restrictive covenant)?

Answer 25

The restrictive covenant is a promise to refrain from doing something related to land
EXAMPLE: I promise not to build for commercial purposes, I promise not keep my garage doors open at night

Question 26

What is an affirmative covenant?

Answer 26

The affirmative covenant is a promise to do something related to land;
EXAMPLE: I promise to paint our common fence

Question 27

When will a covenant run with the land (i.e. capable of binding its successors)?
EXAMPLE: Neighbor A promises neighbor B that A will not build for commercial purposes on A’s property. A’s parcel is burdened by the promise. B’s parcel is benefited. Later, A sells her burdened parcel to A-1. B sells his benefited parcel to B-1. Now, A-1 has commenced manufacture of a steak sauce plant on the premises. B-1 wishes to proceed against A-1 for money damages. Will B-1 succeed? It depends on whether the facts support the conclusion that the burden and benefit run.

Answer 27

The elements necessary for a burden to run are (WITHN):
W - Writing - The promise between A & B was in writing (had to have been)
I - Intent - The original parties intended that the covenant would run (Courts are generous in finding the requisite intent)
T - Touch and concern the land - The promise must affect the parties’ legal relations as landowners, and not simply as members of the community at large (Note: 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)
H - Horizontal and Vertical privity - Both are needed for the burden to run
i. Horizontal privity refers to the agreement between the original parties (A & B)
ii. Vertical privity refers to the nexus between A and A1
N - Notice - Had notice of the promise when she took

Question 28

What are the elements that must be met in order to have horizontal privity?

Answer 28

Requires that they (A & B) be in succession of estate (legal term of art), meaning that they were in a grantor-grantee, mortgage-mortgagee, or landlord-tenant relationship Usually on the bar this is a grantor-grantee relationship

Question 29

What is vertical privity?

Answer 29

The nexus between A and A1, generally this is always there and will only be absent where A1 took through adverse possession

Question 30

Neighbor A promises neighbor B that A will not build for commercial purposes on A’s property. A’s parcel is burdened by the promise. B’s parcel is benefited. Later, A sells her burdened parcel to A-1. B sells his benefited parcel to B-1. Now, A-1 has commenced manufacture of a steak sauce plant on the premises. B-1 wishes to proceed against A-1 for money damages. Will B-1 succeed? It depends on whether the facts support the conclusion that the burden and benefit run. Second, does the benefit of A’s promise to B run from B to B-1? Does B-1 have standing to make this claim? (this is after it has been determined that the covenant runs with the land) (this is asking does the benefit run with the land)

Answer 30

There are 4 elements that must be met (easier to meet than covenants running with the land) (WITV)
W - Writing - The original promise from A to B was in writing
I - Intent - The original parties A & B intended that the benefit would run
T - Touch and concern - The promise effects the parties as landowners
V - Vertical privity - A non-hostile nexus between B and B1

Question 31

What is an equitable servitude?

Answer 31

The equitable servitude is a promise that equity will enforce against successors. It is accompanied by injunctive relief (this is the distinction to be drawn with a covenant, usually with a covenant the relief sought will be money damages)

Question 32

How do you create equitable servitudes that bind successors?

Answer 32

Remember WITNES
W - Writing - Generally but not always the original promise was in writing
I - Intent - The parties intended that the promise would bind successors
T - Touch and concern - The promise effects the parties as landowners
N - Notice - The successors of the burdened land had notice of the promise
ES - The ES is a reminder that we are in the purview of the equitable servitude (privity is not needed to enforce an equitable servitude)

Question 33

Implied equitable servitude: A subdivides her land into 50 lots. She sells lots 1 through 45 through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by deed containing no such covenant. B now seeks to build a convenience store on his lot. Can he be enjoined from doing so?

Answer 33

Yes, if the two elements of the general or common scheme doctrine apply. Under the common scheme doctrine, the court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant.
The 2 elements are:
1. When the sale began, the subdivider A had a general scheme of residential development which included defendants lot, and;
2. The def. lot holder B had notice of the promise contained in the prior deeds (3 types of notice)
i. Actual - Def. had literal knowledge of the promises in the prior deeds
ii. Inquiry - The neighborhood conforms to the common restriction, synonomous with the lay of the land
iii. Record notice - meaning the form of notice sometimes imputed to buyers on the basis of the publicly recorded documents
*Jurisdictional split:
B should be held to record notice
B ought not be held to record notice (this is the better view, less burdensome to def’s title searcher)

Question 34

What are the equitable defenses to enforcement of an equitable servitude?

Answer 34

1. 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 (Hard to do - The entire area has been forever altered) - HOWEVER mere pockets of change are never enough