Servitudes Flashcards
What is an easement?
a grant of a nonpossessory property interest that entitles its holders to some form of use or enjoyment of another’s land, called the servient tenement
What is an affirmative easement?
a right to do something on servient land
What is a negative easement?
entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible
What are the four common categories of negative easements? (LASS)?
Light Air Support Stream water from an artificial flow (and in a minority of states - scenic view)
How does one create a negative easement?
must be created expressly, by writing signed by the grantor - no natural or automatic right to a negative easement (must bargain!)
What is an easement appurtenant?
an easement that benefits its holder in his physical use or enjoyment of his property IT TAKES TWO! (2 parcels of land must be involved)
A grants B a right of way across A’s land, so that B can more easily reach his land. B’s land is benefited by the easement. In easement parlance, it is the dominant tenement. A’s land is serving B’as easement. It is the servient tenement. What does B have?
B has an easement appurtenant to B’s dominant tenement
What is an easement in gross?
an easement that confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land no benefited or dominant tenement - just servient land burdened
What are the common examples of an easement in gross?
- right to place billboard on another’s land 2. right to fish or swim in another’s pond 3. power company’s right to lay power lines on another’s land
Can you transfer an easement appurtenant?
Yes - it passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance
If a parcel of land has an easement, and the dominant tenement is sold - does the easement pass if it is not mentioned in the conveyance?
yes
If the servient tenement sells her land - when does the burden of the easement appurtenant pass with the servient estate?
automatically unless the new owner is a bona fide purchaser with no notice of the easement
Can you transfer an easement in gross?
no - unless it is for commercial purposes
How can you create an affirmative easement? (PING)
Prescription Implication Necessity Grant
How do you create an easement by grant?
an easement to endure for more than one year must be in writing that complies with the formal elements of a deed
How do you create an easement by implication?
an easement can be implied from existing use of hte land if
- previous use was apparent; and
- the parties expected that the use would continue because it is reasonably necessary to the dominant land’s use and enjoyment
How do you create an easement by necessity?
an easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out - except over soem part of granotr’s remaining land
How do you create an easement by prescription?
an easement may be acquired by satisfying the elements of adverse possession (COAH)
How do you determine the scope of an easement?
look to the terms of the grant or the conditions that created the easement
cannot unilaterally expand the scope of easement
List the methods of terminating an easement:
END CRAMP:
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger Doctrine
Prescription
How do you terminate an easement through estoppel?
Servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced
How do you terminate an easement by necessity?
Easements created by necessity expire as soon as the need ends
How do you end an easement through destruction?
destruction of servient land, other than through the willful conduct of the servient owner, ends the easement
How do you terminate an easement through condemnation?
imminent domain ends an easement
How do you terminate an easement through release?
a written release, given by the easement owner to the servient owner, ends an easement
How do you terminate an easement through abandonment?
the easement holder must demonstrate by physical action the intent to never use the easement again
How do you terminate an easement through the merger doctrine (unity of ownership)?
easement is extinguished when title to the easement and title to the servient land become vested in the same person
How do you terminate an easement through prescription?
servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (COAH)
What is a license?
mere privilege to enter another’s land for a delineated purpose
Are licenses subject to the statute of frauds?
no - do not need a writing to create a license
When can a license be revoked?
licenses are fully revocable, at the will of hte licensor - unless estoppel applies to bar ervocation
List the two “classic” license cases:
- ticket cases – create a freely revocable license
- neighbors talking by the fence – nothing good happens
When will estoppel bar revocation of a license?
only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s condition
What is “the profit”?
the profit entitles its holder to ener hte servient land and take from it the soil or some substance of soil (minerals, oil, timber)
what rules guide the profit?
all rules of easements - but you can actually take something off the land
What is a covenant?
the covenant is a promise to do or not do something related to land - not the grant of a property interest, but a contractual limitation or promise regarding land
What is a restrictive covenant?
a promise to refrain from doing somethin grelated to the land (“I promise not to build for commercial purposes”)
How do you distinguish between promises as a covenant or as an equitable servitude?
$ damages – covenant
injunction – equitable servitude
What two steps must be met to answer the question, “when will the covenant run with the land?”
- does the burden of A’s promise to B run from A to A-1?
- Does the benefit of A’s proimse to B run from B to B-1
What analysis must you use when determining if a burden runs with the land?
WITHN
- Writing - promise between A and B must be in writing
- Intent - original parties intended covenant would run
- touch and concern the land - promise must affect the parties’ legal relations as landowners and not as members of community at large
- Horizontal and Vertical Privity - the nexus between the original parties
- Notice - purchasing party had notice of the burden when she took
How do you determine if two parties are in horizontal privity to determine if burden runs with the land?
parties must be in succesion of estate - they must be grantor-grantee or L-T or mortgator-mortgagee
HARD
How do you determine if two parties are in vertical privity for the purpose of determining if burden or benefit run with the land?
requires some non-hositle nexus - contract, devise, descent - really only absent if acquired through adverse possession
What analysis must you use when determining if a benefit runs with the land?
- Writing - original promise from A-B in writing
- Intent - A & B intended benefit would run
- Touch and concern - promise effects parties as landowners
- Vertical Privity - non-hostile nexus between B-B1
What is an equitable servitude?
promise that equity will enforce against successors - accompanied by injunctive relief
To create an equitable servitude that will bind successors - parties must do what?
- Writing - generally (not always) promise in writing
- Intent - parties intended promise would bind successors
- Touch and concern - affects parties as landowners
- Notice - successor of burdened land had notice
Privity not required
What are the two elements of the general or common scheme doctrine?
- when the sales began, the subdivider had general scheme of residential development which included ∆s lot
- ∆ lot holder had notice of promise contained in prior deeds (3 forms of notice - AIR)
What is an implied equitable servitude?
can create an implied equitable servitude and enjoin successors if you meet hte elements of general or common scheme doctrine
What three forms of notice potentially are imputed to ∆ arguing he should not be held to the promise of an equitable servitude?
AIR
- Actual notice - ∆ had literal knowledge of promises in prior deeds
- Inquiry notice - neighborhood conforms to common restriction (“Lay of the Land”)
- Record notice - the form of notice sometimes imputed on the basis of the publicly recorded documents
What are the equitable defenses to enforcement of servitude?
changed conditions – changed circumstances alleged by the party seeking release from the terms must be so pervasive that entire AREA has changed
mere pockets of limited change are never enough
