Servitudes

Question 1

What is an easement?

Answer 1

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

Question 2

What is an affirmative easement?

Answer 2

a right to do something on servient land

Question 3

What is a negative easement?

Answer 3

entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible

Question 4

What are the four common categories of negative easements? (LASS)?

Answer 4

Light Air Support Stream water from an artificial flow (and in a minority of states - scenic view)

Question 5

How does one create a negative easement?

Answer 5

must be created expressly, by writing signed by the grantor - no natural or automatic right to a negative easement (must bargain!)

Question 6

What is an easement appurtenant?

Answer 6

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)

Question 7

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?

Answer 7

B has an easement appurtenant to B’s dominant tenement

Question 8

What is an easement in gross?

Answer 8

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

Question 9

What are the common examples of an easement in gross?

Answer 9

1. 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

Question 10

Can you transfer an easement appurtenant?

Answer 10

Yes - it passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance

Question 11

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?

Answer 11

yes

Question 12

If the servient tenement sells her land - when does the burden of the easement appurtenant pass with the servient estate?

Answer 12

automatically unless the new owner is a bona fide purchaser with no notice of the easement

Question 13

Can you transfer an easement in gross?

Answer 13

no - unless it is for commercial purposes

Question 14

How can you create an affirmative easement? (PING)

Answer 14

Prescription Implication Necessity Grant

Question 15

How do you create an easement by grant?

Answer 15

an easement to endure for more than one year must be in writing that complies with the formal elements of a deed

Question 16

How do you create an easement by implication?

Answer 16

an easement can be implied from existing use of hte land if

1. previous use was apparent; and
2. the parties expected that the use would continue because it is reasonably necessary to the dominant land’s use and enjoyment

Question 17

How do you create an easement by necessity?

Answer 17

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

Question 18

How do you create an easement by prescription?

Answer 18

an easement may be acquired by satisfying the elements of adverse possession (COAH)

Question 19

How do you determine the scope of an easement?

Answer 19

look to the terms of the grant or the conditions that created the easement

cannot unilaterally expand the scope of easement

Question 20

List the methods of terminating an easement:

Answer 20

END CRAMP:

Estoppel

Necessity

Destruction

Condemnation

Release

Abandonment

Merger Doctrine

Prescription

Question 21

How do you terminate an easement through estoppel?

Answer 21

Servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced

Question 22

How do you terminate an easement by necessity?

Answer 22

Easements created by necessity expire as soon as the need ends

Question 23

How do you end an easement through destruction?

Answer 23

destruction of servient land, other than through the willful conduct of the servient owner, ends the easement

Question 24

How do you terminate an easement through condemnation?

Answer 24

imminent domain ends an easement

Question 25

How do you terminate an easement through release?

Answer 25

a written release, given by the easement owner to the servient owner, ends an easement

Question 26

How do you terminate an easement through abandonment?

Answer 26

the easement holder must demonstrate by physical action the intent to never use the easement again

Question 27

How do you terminate an easement through the merger doctrine (unity of ownership)?

Answer 27

easement is extinguished when title to the easement and title to the servient land become vested in the same person

Question 28

How do you terminate an easement through prescription?

Answer 28

servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (COAH)

Question 29

What is a license?

Answer 29

mere privilege to enter another’s land for a delineated purpose

Question 30

Are licenses subject to the statute of frauds?

Answer 30

no - do not need a writing to create a license

Question 31

When can a license be revoked?

Answer 31

licenses are fully revocable, at the will of hte licensor - unless estoppel applies to bar ervocation

Question 32

List the two “classic” license cases:

Answer 32

1. ticket cases – create a freely revocable license
2. neighbors talking by the fence – nothing good happens

Question 33

When will estoppel bar revocation of a license?

Answer 33

only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s condition

Question 34

What is “the profit”?

Answer 34

the profit entitles its holder to ener hte servient land and take from it the soil or some substance of soil (minerals, oil, timber)

Question 35

what rules guide the profit?

Answer 35

all rules of easements - but you can actually take something off the land

Question 36

What is a covenant?

Answer 36

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

Question 37

What is a restrictive covenant?

Answer 37

a promise to refrain from doing somethin grelated to the land (“I promise not to build for commercial purposes”)

Question 38

How do you distinguish between promises as a covenant or as an equitable servitude?

Answer 38

$ damages – covenant

injunction – equitable servitude

Question 39

What two steps must be met to answer the question, “when will the covenant run with the land?”

Answer 39

1. does the burden of A’s promise to B run from A to A-1?
2. Does the benefit of A’s proimse to B run from B to B-1

Question 40

What analysis must you use when determining if a burden runs with the land?

Answer 40

WITHN

1. Writing - promise between A and B must be in writing
2. Intent - original parties intended covenant would run
3. touch and concern the land - promise must affect the parties’ legal relations as landowners and not as members of community at large
4. Horizontal and Vertical Privity - the nexus between the original parties
5. Notice - purchasing party had notice of the burden when she took

Question 41

How do you determine if two parties are in horizontal privity to determine if burden runs with the land?

Answer 41

parties must be in succesion of estate - they must be grantor-grantee or L-T or mortgator-mortgagee

HARD

Question 42

How do you determine if two parties are in vertical privity for the purpose of determining if burden or benefit run with the land?

Answer 42

requires some non-hositle nexus - contract, devise, descent - really only absent if acquired through adverse possession

Question 43

What analysis must you use when determining if a benefit runs with the land?

Answer 43

1. Writing - original promise from A-B in writing
2. Intent - A & B intended benefit would run
3. Touch and concern - promise effects parties as landowners
4. Vertical Privity - non-hostile nexus between B-B1

Question 44

What is an equitable servitude?

Answer 44

promise that equity will enforce against successors - accompanied by injunctive relief

Question 45

To create an equitable servitude that will bind successors - parties must do what?

Answer 45

1. Writing - generally (not always) promise in writing
2. Intent - parties intended promise would bind successors
3. Touch and concern - affects parties as landowners
4. Notice - successor of burdened land had notice

Privity not required

Question 46

What are the two elements of the general or common scheme doctrine?

Answer 46

1. when the sales began, the subdivider had general scheme of residential development which included ∆s lot
2. ∆ lot holder had notice of promise contained in prior deeds (3 forms of notice - AIR)

Question 47

What is an implied equitable servitude?

Answer 47

can create an implied equitable servitude and enjoin successors if you meet hte elements of general or common scheme doctrine

Question 48

What three forms of notice potentially are imputed to ∆ arguing he should not be held to the promise of an equitable servitude?

Answer 48

AIR

1. Actual notice - ∆ had literal knowledge of promises in prior deeds
2. Inquiry notice - neighborhood conforms to common restriction (“Lay of the Land”)
3. Record notice - the form of notice sometimes imputed on the basis of the publicly recorded documents

Question 49

What are the equitable defenses to enforcement of servitude?

Answer 49

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