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Servitudes Flashcards

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1
Q

servitudes

A

easement, license, profit, covenant, equitable servitude

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2
Q

servitudes

easement

A

definition, affirmative or negative, appurtenant or in gross, transferability, creation of affirmative easement, scope of easement, termination of easement

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3
Q

servitudes
easement
definition

A

easement
The right to do something on servient land.
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.

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4
Q

servitudes
easement
affirmative or negative

A

Most easements are affirmative.
A 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 4 categories (LASS): light, air, support, stream from an 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.

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5
Q

servitudes
easement
appurtenant or in gross

A
  1. An easement is appurtenant when it benefits its HOLDER in his physical use or enjoyment of his property.
    a. 2 parcels are implicated
    b. Dominant tenement gets the benefit
    c. Servient tenement bears the burden
  2. An easement in gross confers upon its holder ONLY some personal or pecuniary advantage that is NOT RELATED to his use or enjoyment of his land.
    a. Only 1 parcel is implicated
    b. Servient land bears the burden
    c. There is no benefited or dominant tenement.
    d. Examples: billboard, swimming, lay power lines
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6
Q

servitudes
easement
transferability

A
  1. An easement appurtenant PASSES AUTOMATICALLY with the dominant tenement, regardless of whether it is even mentioned in the conveyance.
  2. An easement in gross is NOT TRANSFERABLE UNLESS it is for commercial purposes.
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7
Q

servitudes
easement
creation of an affirmative easement (PING)

A

Prescription, necessity, implication, grant

  1. By grant
  2. By implication
  3. By necessity
  4. By prescription
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8
Q

servitudes
easement
creation of an affirmative easement by grant

A

By grant

For an easement to endure for more than 1 year, it MUST BE IN WRITING to comply w/the formal elements of the SoF

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9
Q

servitudes
easement
creation of an affirmative easement by implication

A

By implication (aka easement implied from existing use)
A court may imply an easement if:
1. The previous use was apparent AND
2. The parties expected it would continue b/c it is reasonably necessary to the dominant land’s use and enjoyment.

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10
Q

servitudes
easement
creation of an affirmative easement by necessity

A 
By necessity (landlocked)
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 part of Grantor's remaining land.
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11
Q

servitudes
easement
creation of an affirmative easement by prescription

A

An easement by prescription may be acquired by satisfying the elements of COAH
Continuous use for the statutory period
Open and notorious
Actual use (that need not be exclusive)
Hostile (w/o servient owner’s consent - visible w/o permission) - permission DEFEATS the acquisition of easement by prescription.

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12
Q

servitudes
easement
scope of easement

A

The scope of an easement is determined by the terms that created it.

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13
Q

servitudes
easement
termination of an easement (END CRAMP)

A 
END CRAMP
Estoppel
Necessity
Destruction of the servient land
Condemnation of the servient estate
Release
Abandonment
Merger doctrine
Prescription
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14
Q

servitudes
easement
termination of an easement (END CRAMP)
Estoppel

A

Estoppel - Servient owner materially changes position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced. (swimming pool in old road)

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15
Q

servitudes
easement
termination of an easement (END CRAMP)
Necessity

A

Necessity - Easements created by necessity will expire as soon as the need ends.
However, if the easement, attributable to necessity, was nonetheless created by express grant, it persists.

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16
Q

servitudes
easement
termination of an easement (END CRAMP)
Destruction

A

Destruction of the servient land, other than through the willful conduct of the servient owner.

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17
Q

servitudes
easement
termination of an easement (END CRAMP)
Condemnation of the servient estate

A

Condemnation of the servient estate by eminent domain.

18
Q

servitudes
easement
termination of an easement (END CRAMP)
Release

A

Release - A written release, given by the easement holder to the servient owner.

19
Q

servitudes
easement
termination of an easement (END CRAMP)
Abandoment likely to be tested

A

Abandonment - The easement holder must demonstrate by PHYSICAL ACTION the intent to NEVER use the easement again.
Nonuse or mere words are INSUFFICIENT to terminate by abandonment.

20
Q

servitudes
easement
termination of an easement (END CRAMP)
Merger doctrine

A

Merger doctrine (aka unity of ownership)
The easement is extinguished when title to the easement and title to the servient land become vested in the same person.
Note: Even though there may be later separation of title, the easement is NOT revived.

21
Q

servitudes
easement
termination of an easement (END CRAMP)
Prescription

A 
Prescription - the servient owner may extinguish the easement by interfering with it in accordance to COAH
Continuous interference
Open and notorious
Actual
Hostile to the easement holder
22
Q

servitudes

license

A

definition
SoF
revocation
Classic cases

23
Q

servitudes

license - definition

A

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

24
Q

servitudes

license - SoF

A

Licenses are NOT subject to SoF.

You do NOT need a writing to create a license

25
Q

servitudes

license - revocation

A

Licenses are FREELY REVOCABLE, at the will of the licensor UNLESS estoppel applies to bar revocation.

26
Q

servitudes

license - classic cases

A

Tickets - Tickets create freely revocable licenses.
Neighbors talking by the fence - An oral easement creates instead a freely revocable license
Estoppel will apply to bar revocation ONLY when the licensee has invested SUBSTANTIAL $ or labor or both in reasonable reliance on the license’s continuation.

27
Q

servitudes

profit

A

The profit entitles its holder to enter the servient land and take from it the soil or some substance of the soil (timber, minerals, etc.).
The profit shares ALL EASEMENT RULES.

28
Q

servitudes

covenant

A

definition
restrictive covenants (negative)
covenant v equitable servitude
burden/benefit

29
Q

servitudes

covenant - definition

A

Covenant - a promise to do or not do something related to land.
It is UNLIKE the easement b/c it is NOT the grant of a property interest, but rather a CONTRACT or promise regarding land.

30
Q

servitudes

covenant - restrictive covenant

A

restrictive covenant - a promise to not do something related to land
examples: Not build for commercial purposes, not to paint brown, not to plant fir trees
affirmative covenant - a promise to do something related to land
example: paint our common fence

31
Q

servitudes

covenant - covenant v equitable servitude

A

Construe a given promise as a covenant or an equitable servitude on the basis of the remedy P seeks.
If P seeks $ damages, construe as a covenant.
If P seeks an injunction, construe as an equitable servitude.

32
Q

servitudes

covenant - burden/benefit

A

burden/benefit
When will the covenant run with the land (capable of binding successors?
1. Does the burden of A’s promise to B run from A to A1? (Harder for burdens to run than benefits to stop)
2. Does the benefit of A’s promise to B run from B to B1?

33
Q

servitudes
covenant - burden/benefit
Does the burden of A’s promise to B run from A to A1?
(look WITHN)

A

Elements for burden to run - WITHN
Writing - promise from A to B was in writing
Intent - A & B intended that the covenant would run (courts are generous in finding intent)
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 (HOA fees t&c the land)
Horizontal and vertical privity - Horizontal privity refers to the nexus between A&B - they must be in succession of estate (grantor/grantee, landlord/tenant, mortgagor/mortgagee) HARD TO ESTABLISH
- vertical privity refers to the nexus between A & A1. Simply requires some non-hostile nexus such as K, devise, descent. Only absent if A1 acquired interest through adverse possession
Notice - A1 had notice of the promise when she took

34
Q

servitudes
covenant - burden/benefit
Does the burden of A’s promise to B run from B to B1?
WITV

A

Elements for the benefit to pass - WITV
Writing - promise from A to B was in writing
Intent - A & B intended that the benefit would run
Touch and concern the land - The promise affects the parties as landowners
Vertical privity - nonhostile nexus between B & B1 (K, devise, descent)

35
Q

servitudes

equitable servitude

A

definition
creation of equitable servitude
implied equitable servitude
equitable defenses

36
Q

servitudes

equitable servitude - definition

A

Equitable servitude - a promise that equity will enforce against successors.
It is accompanied by INJUNCTIVE RELIEF.

37
Q

servitudes

equitable servitude - creation of equitable servitude

A

To create an equitable servitude that will bind successors:
(Can I get a WITN ES?)
Writing - The original promise was in writing
Intent - parties intended the promise would bind successors
Touch and concern - promise affects the parties as landowners
Notice - successors of burdened land had notice of the promise
ES - equitable servitude

38
Q

servitudes

equitable servitude - implied equitable servitude

A

PRIVITY IS NOT REQUIRED to bind successors
The implied equitable servitude is a general or common scheme doctrine.
The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant.
The two elements of common scheme doctrine:
1. When the sales began, the subdivider had a general scheme of residential development which included D’s lot.
2. D lotholder had notice of the promise in the prior deeds

39
Q

servitudes
equitable servitude - implied equitable servitude
3 forms of notice imputed to D

A

3 forms of notice imputed to D - AIR
Actual notice - D know of common restriction
Inquiry notice - neighborhood conforms to common restriction (lay of the land)
Record notice - publicly recorded documents imputed to buyers

40
Q

servitudes

equitable servitude - equitable defenses

A

equitable defenses to enforcement of an equitable servitude
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.
Mere pockets of limited change is NEVER enough.

Bar prep - property (11 decks)

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