Servitudes

Question 1

Easement Defined

Answer 1

the grant of a nonpossessory property interest that entitles is holder to some form of use or enjoyment of another’s land, called the servient tenement

Question 2

Easements Can Be Affirmative or Negative

Answer 2

a. most are affirmative (gives easement holder the right to do something on servant land)
b. negative easements: entitles holder to precent the servient landowner from doing something that would otherwise be permissible–generally recognized in only 4 categories: LASS: Light, Air, Support, Streamwater from artificial flow (also for scenic view in minority of states)
NOTE-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 3

Easement is Either Appurtenant to the Land or Held In Gross

Answer 3

a. easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property (takes 2 parcels of land; dominant tenement gets benefit/servient bears burden)
b. easement is in gross if it confers upon its holder only some personal or pecuniary advantage that isn’t related to his use or enjoyment of his land (servant land burdened; is no dominant land; only 1 parcel involved)

Question 4

Easement and Transferability

Answer 4

a. the appurtenant easement passes automatically w/ the dominant tenement, regardless of whether it’s even mentioned in the conveyance
b. easement in gross is not transferable unless it’s for commercial purposes

Question 5

Creation of Affirmative Easement

Answer 5

PING: prescription, implication, necessity, grant

a. by grant: easement to endure for more than 1 year must be in a writing that complies w/ the formal elements of a deed–because of the statue of frauds
b. by implication: there’s an easement if 1-the previous use was apparent and 2-the parties expected the use would continue because it is reasonably necessary to dominant lands use and enjoyment
c. by necessity: landlocked setting–easement of right of way will be implied by necessity if grantor conveys a portion of his land w/ no way out except over some part of grantor’s remaining land
d. by prescription: easement may be acquired by satisfying the elements of adverse possession (continuous use, open & notorious, actual use, hostile use)

Question 6

Scope of an Easement

Answer 6

-determined by the terms of the grant, or the conditions that created it

Question 7

Termination of an Easement

Answer 7

END CRAMP:

• Estoppel: servient owner materially changes his position in reasonable reliance on easement holder’s assurances that the easement will not be enforced
• Necessity: easements created by necessity expire as soon as: the need ends
• Destruction of the servient land, other than through the willful conduct of the servant owner ends the easement
• Condemnation (eminent domain) of the servant estate ends the easement
• Release: a written release, given by the easement holder to the servant owner
• Abandonment: easement holder must demonstrate by physical action (intent to never use easement again) (mere words, mere nonuse not enough for abandonment)
• Merger doctrine: easement is extinguished when title to the easement and title to the servant land become vested in same person
• Prescription: servant owner may extinguish the easement by interfering with it in accordance w/ elements of adverse possession

Question 8

License

Answer 8

1-Defined: a mere privilege to enter another land for a delineated purpose
2-licenses are not subject to statute of frauds–do not need a writing
3-licenses are freely revocable, at the will of the licensor, unless estoppel applies
4-classic license cases:
i. ticket cases–tickets create freely revocable licenses
ii. neighbors talking by the fence
iii. estoppel will apply to bar revocation only when the licensee has invested substantial money, labor, or both in reasonable reliance on the license’s continuation

Question 9

The Profit

Answer 9

1-entitles its holder to enter the servant land and take from it the soil or some substance of the soil (minerals, timber, oil)
2-the profit shares all the rules of easements

Question 10

The Covenant Defined

Answer 10

a promise to do or not do something related to the land–UNLIKE the easement because it is not the grant of a property interest, but rather contractual limitation or promise regarding land

Question 11

The Covenant (negative or affirmative)

Answer 11

• negative-aka restrictive covenants–a promise to refrain from doing something related to land
• affirmative-a promise to do something related to land

Question 12

Is a Given Promise a Covenant or Equitable Servitude?

Answer 12

look at the basis of the remedy Plaintiff seeks; money damages=covenant; injunction=equitable servitude

Question 13

With Covenants, one Tract is Burdened by the Promise and another is Benefitted–When Will the Covenant Run With the Land? aka Capable of Binding Successors?
Example–A promises neighbor B that A will not build for commercial purposes on A’s property–A’s parcel burdened & B’s benefitted–A sells property to A1–B sells to B1–A1 has began building commercial building on land–can B1 sue A1 for damages?

Answer 13

-Depends on whether the facts support the conclusion that the burden and benefit run
1st-does the burden of A’s promise to B run from A to A1?
Elements necessary for burden to run: WITHN:
-Writing: promise between A&B must be in writing
-Intent: original parties A&B intended for covenant to run
-Touch and concern: promise must affect the parties’ legal relations as landowners, and not simply as members of community @ large
-Horizontal & vertical privity: both needed for burden to run–horizontal privity refers to the nexus between original parties–requires they’re in succession of estate, meaning that they were in a grantor/grantee, landlord/tenant, or mortgagor/mortgagee relationship–vertical privity refers to the nexus between A&A1–requires some non hostile nexus
-Notice: A1 had notice of the promise when she took
2nd-does the benefit of A’s promise to B run from B to B1? WITV:
-Writing: original promise in writing
-Intent: intent for benefit to run
-Touch and concern: promise affects parties as landowners
-Vertical privity: non hostile nexus between B&B1 (horizontal privity not required for benefit to run)

Question 14

Equitable Servitude Defined

Answer 14

the equitable servitude is a promise that equity will enforce against successors–accompanied by injunctive relief

Question 15

To Create an Equitable Servitude the Will bind Successors

Answer 15

WITNES
-Writing: generally, but not always, original promise in writing
-Intent: parties intended that the promise would bind successors
-Touch and Concern: promise affects the parties as landowners
-Notice: successors of the burdened land had notice of the promise
NOTE-privity not required to bind successors

Question 16

Implied Equitable Servitude–The General or Common Scheme Doctrine

Answer 16

2 elements: i-must be a general scheme of development; ii-defendant has notice of the promise contained in prior deeds–3 forms of notice AIR:

 - Actual notice: D has literal knowledge of the promise in prior deeds
 - Inquiry notice: neighborhood conforms to the common restriction (lay of the land)
 - Record notice: the form of the notice sometimes imputed to buyers on the basis of properly recorded documents

Question 17

Equitable Defenses to Enforcement of an Equitable Servitude

Answer 17

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