Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Property Law > Servitudes > Flashcards

Servitudes Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards MPRE flashcards Civil Procedure 1L flashcards
1
Q

What is an easement?

A

The grant of a NONPOSSESSORY property interest that entitles its holder to some form of use or enjoyment of another’s land (called the servient tenement)

May be positive (A may…) or negative (A may not…)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is a positive easement?

A

The right to do something on servient land (lay utility lines; right of access across land)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is a negative easement?

A

The right to prevent the servient holder from doing something that is otherwise permissible

Can be created only by express writing, signed by the grantor (no natural or automatic negative easements)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the four categories of negative easements?

(Majority: LASS)

(Minority: LASSs)

A
  1. Light
  2. Air
  3. Support
  4. Stream water from an artificial flow
    (5. scenic view: minority only)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are the two types of easements?

A
  1. Appurtenant to land
  2. Held in gross
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is an appurtenant easement?

A

An easement that benefits its holder in his physical use or enjoyment of his property

Must involve two parcels: a dominant tenement that gets the benefit, and a servient tenement that bears the burden (easement is always appurtenant to the dominant tenement)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is an easement in gross?

A

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 (the burdened land is servient, but there is no dominant tenement)

(e.g., right to place a billboard on another’s lot; right to swim in another’s pond; right to lay power lines on another’s land)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are the rules for transferability of easements? (3 notes)

A
  1. Appurtenant easements: passes automatically with dominant tenament, regardless of whether it’s mentioned in the conveyance

(N.B. The burden of the appurtenant easement passes automatically UNLESS bought by a bona fide purchaser without notice of the easement!)

  1. Easement in gross is not transferable unless it is for commercial purposes
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the four ways an affirmative easement can be created? (PING)

A
  1. Prescription
  2. Implication
  3. Necessity
  4. Grant
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

How is an affirmative easement created by grant?

A

Easement to endure for more than one year must be in a writing that complies with the requirements for a deed (SoF) (Called a deed of easement)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

How is an affirmative easement created by implication?

A
  1. Previous use was apparent
  2. The parties expected that the use would survive division, because it’s reasonably necessary to the dominant land’s use and enjoyment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

How is an affirmative easement created by necessity?

A

Easement of right of way implied by necessity if: Grantor conveys a portion of his land with no way out (except over grantor’s remaining land)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

How is an affirmative easement created by prescription? (Hint: COAH)

A

By satisfying the elements of adverse possession: (COAH)

  1. Continuous use for the statutory period (10 in NY)
  2. Open and notorious
  3. Actual use (need not be exclusive here!)
  4. Hostile (without consent—permission always defeats grant of easement)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is the scope of an easement?

A

Set by the terms that created it (Unilateral expansion is not allowed)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the eight ways to terminate an easement?

(END CRAMP)

A
  1. Estoppel
  2. Necessity
  3. Destruction of the servient land
  4. Condemnation of the servient estate
  5. Release
  6. Abandonment
  7. Merger
  8. Prescription
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

How is an easement terminated by estoppel?

A

Servient owner materially changes his position in reasonable reliance one easement holder’s assurances that the easement will not be enforced (Dominant holder is estopped from enforcing the easement)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is END CRAMP?

A

The eight ways to terminate an easement:

  1. Estoppel
  2. Necessity
  3. Destruction of the servient land
  4. Condemnation of the servient estate
  5. Release
  6. Abandonment
  7. Merger
  8. Prescription
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is COAH?

A

The four elements of adverse possession:

  1. Continuous use for the statutory period (10 in NY)
  2. Open and notorious
  3. Actual use (need not be exclusive here!)
  4. Hostile (without consent—permission always defeats grant of easement)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is PING?

A

The four ways to create an affirmative easement.

  1. Prescription
  2. Implication
  3. Necessity
  4. Grant
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

How is an easement terminated by necessity?

A

Easements created by necessity are terminated when the necessity ends.

BUT, if it was reduced to express writing, won’t end just because the need ends

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

How is an easement terminated by destruction of the servient land?

A

If other than willful conduct of the servient owner, it ends the easement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

How is an easement terminated by condemnation?

A

Eminent domain ends the easement

23
Q

How is an easement terminated by release?

A

Written release From easement holder To servient owner

24
Q

How is an easement terminated by abandonment?

A

Easement holder must demonstrate by physical action the intent never to use the easement again (mere non-use or words will not terminate under abandonment)

25
Q

How is an easement terminated by Merger? (aka Unity of ownership)

A

Easement is extinguished when title to the easement and title to the servient land become vested in the same person (subsequent separation of title irrelevant—recreation of the easement must be created from scratch)

26
Q

How is an easement terminated by prescription?

A

Servient owner may extinguish by interfering with it in accordance with adverse possession (COAH - 1. Continuous interference 2. Open and notorious 3. Actual 4. Hostile to the easement holder)

27
Q

What is a license in the servitude context?

A

The mere privilege to enter another’s land for some delineated purpose

28
Q

What are the rules for (a) creating and (b) revoking licenses?

A

(a) Creation does not require a writing.
(b) Freely revocable at the will of the licensor unless estoppel applies to bar revocation.

29
Q

What are the favorite bar exam license cases?

A
  1. Tickets (create freely revocable licenses)
  2. Neighbors talking by the fence (oral easements unenforceable; creates a freely revocable license)
  3. Estoppel will only bar revocation if licensee has invested substantial money, labor, or both in reasonable reliance on the license continuing
30
Q

What are the five types of servitudes? (E/L/P/C/ES)

A
  1. Easements
  2. Licenses
  3. Profit
  4. Covenant
  5. Equitable servitude
31
Q

What is a profit in the servitude context? (2)

A
  1. Entitles the holder to enter the servient land and take from it the soil, or some substance of the soil (timber; oil; minerals)
  2. The profit shares all the rules of easements
32
Q

What is a covenant in the servitude context?

A

A promise to do or not do something related to land (affirmative vs. restrictive covenant)

33
Q

What is the difference between a covenant and an easement?

A

Covenant is a contract, not a property right

34
Q

What are the two types of covenants?

A
  1. Restrictive (negative): no restrictions on scope (unlike negative easement)
  2. Affirmative (e.g., maintain a common fence)
35
Q

How do you distinguish a covenant from an equitable servitude?

A

On the basis of the remedy plaintiff seeks!

Money damages: construe at law as covenant

Injunction: construe at equity as an equitable servitude

36
Q

How is each property referred to in the covenant-servitude context?

A

One is burdened by the promise

The other is benefited

37
Q

When will a covenant run with the land?

A

When it’s capable of binding successors

38
Q

How do you determine whether a covenant is capable of binding successors?

A
  1. Does the burden run to A’s successor?
  2. Does the benefit run to B’s successor?
39
Q

What are the elements needed for a burden to run to successors? (WITHN)

A
  1. Writing: original promise between A and B was in writing
  2. Intent: original parties, A and B, intended that the covenant would run (courts are generous here)
  3. Touch and Concern: the promise must affect the parties’ legal relations as landowners, not merely members of the community at large (covenants to pay money used for land and not to compete DO touch and concern)
  4. Horizontal and vertical privity (both needed)
  5. Notice: successor had notice of the promise when she took
40
Q

What is WITHN?

A

The elements needed for a burden (of a covenant) to run with successors.

  1. Writing: original promise between A and B was in writing
  2. Intent: original parties, A and B, intended that the covenant would run (courts are generous here)
  3. Touch and Concern: the promise must affect the parties’ legal relations as landowners, not merely members of the community at large (covenants to pay money used for land and not to compete DO touch and concern)
  4. Horizontal and vertical privity (both needed)
  5. Notice: successor had notice of the promise when she took
41
Q

What is horizontal privity?

A

The nexus between the originally promising parties

Requires they be in succession of estate (this is hard to establish, and frequently absent)

42
Q

What three relationships satisfy succession of estate?

A
  1. Grantor/grantee
  2. Landlord/tenant
  3. Mortgagor/mortgagee
43
Q

What is vertical privity?

A

The nexus between A and his successor, A-1

Simply requires some non-hostile nexus (contract, devise, descent)

44
Q

What are the elements needed for a benefit to run to the successor? (WITV)

A
  1. Writing: The original promise between A and B was in writing
  2. Intent: The original parties intended that the benefit would run
  3. Touch and concern: promise affects the parties as landowners
  4. Vertical privity between B and B-1 (horizontal privity not required for benefits to run)
45
Q

What is WITV?

A

The elements needed for a benefit (of a covenant) to run with successors.

  1. Writing: The original promise between A and B was in writing
  2. Intent: The original parties intended that the benefit would run
  3. Touch and concern: promise affects the parties as landowners
  4. Vertical privity between B and B-1 (horizontal privity not required for benefits to run)
46
Q

Differentiate WITHN vs. WITV

A

WITHN are the elements needed for a burden (of a covenant) to run with successors: Writing, Intent, Touch + concern, Horizontal + vertical privity, and Notice.

WITV are the elements needed for a benefit (of a covenant) to run with successors: Writing, Intent, Touch + concern, Vertical privity.

47
Q

What is an equitable servitude?

A

A promise that equity will enforce against successors (Accompanied by equitable relief)

48
Q

How is an equitable servitude created? (WITNES)

A
  1. Writing: original promise was in writing (generally, but not always required)
  2. Intent: the original parties intended that the promise would be enforceable by and against assignees
  3. Touch and concern
  4. Notice: assignees of burdened land had notice of the promise (privity not required to bind successors)
49
Q

What is WITNES?

A

The elements needed to create an equitable servitude.

  1. Writing: original promise was in writing (generally, but not always required)
  2. Intent: the original parties intended that the promise would be enforceable by and against assignees
  3. Touch and concern
  4. Notice: assignees of burdened land had notice of the promise (privity not required to bind successors)
50
Q

What are the elements of the general or common scheme doctrine? (2)

A
  1. When sales began, sub-divider had a general scheme of residential development, which included defendant’s lot; AND
  2. The defendant lot holder had notice of the promise contained in the prior deeds
51
Q

Under the general or common scheme doctrine, what is the remedy?

A

Reciprocal negative servitude (aka implied equitable servitude)

52
Q

What are the three forms of notice potentially imputed to a defendant lot holder for the general or common scheme doctrine? (Hint: AIR)

A
  1. Actual notice: D had literal knowledge of the promise in the prior deeds
  2. Inquiry notice: Neighborhood conforms to the common restriction
  3. Record notice: notice imputed to buyers on the basis of the publicly recorded documents (courts split on this issue)
53
Q

NY QUESTION

What is the NY rule for record notice for the general or common scheme doctrine?

A

Subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor

54
Q

What is the equitable defense to enforcement of an equitable servitude?

A

Changed conditions: Changes alleged by party seeking release must be so pervasive that the entire area’s character has changed (mere pockets of limited change are never good enough)

Property Law (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions