Servitudes Flashcards
Easement definition
the grant of a nonpossessory property interest that entitles holder to some form of use or enjoyment of another’s land. Called servient tenement
i. Ex: privilege to lay utility lines, easement giving holder the right of access across tract
Affirmative vs. negative easements
i. Affirmative: right to do smth on servient land
ii. Negative easements: entitles the holder to prevent the servient landowner from doing something that would otherwise be permissible. Four categories: LASS
1. L: light
2. A: air
3. S: support
4. S: streamwater from an artificial flow
5. (in minority of states, right to scenic view,
6. other person can’t build such that you cant get access to light, air, ground support, streamwater from artificial flow. you can compel your neighbor (servient landowner) to do something.
7. neg easements can only be created expressly by writing signed by the grantor. there is no natural or automatic right to a negative easement.
8. on exam, light is most common ex. `
Easements appurtenant to land or held in gross
i. Appurtenant when it benefits its holder in his physical use or enjoyment of his property. How will you know if easement appurtenant:
1. It takes two. Dominant tenement gets benefit. Servient tenement bears the burden.
2. Must have two parcels in fact pattern.
3. Ex: 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’s easement. It is the servient tenement. Notice that two parcels are involved.
a. B has easement appurtenant to B’s dominant tenement. Easement is appurtenant to the DOMINANT land. appurtemant means relevant to.
ii. Easement in gross—confers upon holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. He may not even own land. Servient land is burdened; there is no benefited/ dominant tenement. ONLY ONE PARCEL involved.
1. Exs: for ex. right to place billboard on another’s lot. One party has commercial benefit not linked to its land.
2. Right to swim in another’s pond. right to lay power lines on another’s land.
Easement and transferability
i. Appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.
ii. Ex: a has an easement entitling her to cut across B’s land to get more easily to her land.
1. easement appurtenant, with B’s land servient.
2. Even if A sells land to Mr. X, it passes with the dominant tenement.
iii. Burden of easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice.
iv. Easement in gross is not transferable unless it is for commercial purposes
1. Ex: entitlement to swim in B’s lake, this is an easement in gross. not transferable. personal to the holder
2. starkist’s easement to fish in B’s lake for the starkest tuna company. this is commercial easement in gross, and is transferable without permission.
3. However, the holder of the easent is obligated to reasonably restore land following its use of the easement
Creation of an affirmative easement, four ways
PING
i. P: Prescription
ii. I: implication
iii. N: necessity
iv. G: Grant
v. By grant:
1. an easement to endure for more than one year must be in writing otherwise SOF violation, that complies with the formal elements of a deed (called “deed of easement”_
vi. By implication (AKA easement implied from existing use) “Quasi-easement”:
1. Elements
1) prior to division 2) there was an apparent and continuous use on the servient land 3) that is necessary and 4) parties INTENDED it to continue
a. Prior to the division of a single tract
b. An apparent and continuous use exists on the servient part
c. That is reasonably necessary for the enjoyment of the dominant part AND
d. The court determines that the parties intended the use to continue after division of the land
1. Ex: A owns 2 lots. Lot 1 hooks on a sewer drain on lot 2. A sells lot 1 to B, with no mention of B’s right to continue using the drain. Can imply an easement
a. previous use was apparent
b. parties expected it would continue
2. bc reasonably necessary to dominant lands use and enjoyment
vii. By necessity (landlocked for ex). No way out. Grantor conveys portion and no wy out except over grantor’s remaining land.
1. grantor has the right to choose where to place easement by necessity so long as reasonable.
viii. By prescription: Easement may be acquired by satisfying the elements of adverse possession. COAH
a. C: continuous use for the statutory period
b. O: open and notorious use
c. A: actual use need not be exclusive.
d. H: Hostile use. without servient owner’s consent.
2. For ex: every day I cut across your front lawn on way home. over time I make a continuous pattern for requisite statutory period and my use is notorious and visible. Use must be actual, but need not be exclusive to servient owner.
3. Note: permission defeats the acquisition of an easement by prescription. MUST be hostile.
Scope of easement limits
f. The scope of an easement is determined by the terms that created it.
i. For ex: A gives B an easement to use A’s private road to get to B’s parcel. Subsequently, B purchase greenacre. May B unilarterally expand the use of the easement to benefit Greenacre. → NO
Termination of an easement
Remember END CRAMP
i. E: Estoppel: servient owner materially changes his or her position in reasonable reliance on easement holder’s assuance that the easement will no longer be used
1. A tells B that A will no longer be using her right of way across B’s parcel. In reasonable reliance, B builds a swimming pool on B’s parcel, thereby depriving A of the easement. In equity: A is estopped from enforcing it.
ii. N: Necessity. Easements created by necessity expire as soon as the need ends. However, if the easement attributable to necessity, was nonetheless created by express grant, it persists even when the need ends.
iii. D: Destruction of the servient land, other than through the willful conduct of the servient owner.
iv. C: Condemnation of the servient estate by eminent domain.
v. R: Release written release given by easement holder to the servient owner
vi. A: Abandonment: the easement holder must demonstrate by physical action the intent to never use the easement again
1. MUST HAVE A PHYSICAL ACT! For eX: A has a right of way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever again reaching B’s parcel. That is the sort of action to signify abandonment.
2. mere nonuse or mere words are not enough
vii. Merger doctrine (unity of ownership): title to easement and title to servient land are vested in same person.
1. If merger is achieved. Easement extinguished, even though later separation of title.
2. must be the SAME kind of title
viii. Prescription: The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.COAH
1. Continuous interference
2. Open and notorious
3. Actual
4. Hostile to easement holder
5. A has an easement of right of way across B’s parcel. B erects a chain link fence on B’s parcel, thereby precluding A from reaching it. Over time, B may succeed in extinguishing the easement through prescription
License
a. Defined: A mere privilege to enter another’s land for a delineated purpose.
b. Licenses are not subject to the statute of frauds. Thus you don’t need a writing to create a license, very informa
c. Licenses are fully revocable, at the will of the licensor, unless estoppel applies to bar revocation
d. Classic license cases
i. Ticket cases: Tickets create freely revocable licenses. For ex. buying tickets to the theater. Everyone can go in except you. Allowed, tickets create freely revocable licenses. Management within rights to decline coming in. May have under different theory of direct breach of k for reasonably foreseeable losses/ emotional claims under torts.
ii. Neighbors talking by the fence:
1. For ex. One gives oral easement to cross land. unenforceable, more than one year violates SOF.
2. Oral easement instead creates a freely revocable license
iii. Estoppel will apply to bar revocation only when the licensee has invested substantial money or labor or both in reasonable reliance on the licenses continuation.
Profit
a. Profit entitles its holder the servient land and take from it some soil or some substance of the soil. Like minerals, timber, oil.
b. Profit shares all rules of easement. But now holder has right to take something away from servient land
Covenant defined
a. Promise to do or not do something related to land. Unlike the easement bc not a grant of property interest, but is a contract or promise regarding land.
Covenant negative vs positive
b. Covenants can be and usually are negative (AKA restrictive covenants) Promise to refrain from doing something related to land. EX Promise not to build for commercial purposed.
i. evolved bc negative easements are so limited (air water light support)
ii. for ex. promise not to compete
c. Covenants can also be affirmative. promise to DO something related to land. For ex: to paint common fence, pay HOA fees
Difference between covenant and equitable servitudes
Depends on the basis of the remedy the π seeks.
i. IF π seeks money damages→ construe at law as a covenant. covenant is a legal device, accompanied by money at law.
ii. If π seeks an injunction→ construe as an equitable servitude.
In equitable servitudes:
i. writing not always required, can arise by implication, for negative equitable servitudes from a common scheme for development of residential subdivision.
ii. neither horizontal privity for the running of the burden nor vertical privity for the running of the benefit are required
iii. Damages are injunctive relief, not damages.
Requirements for burden to run in covenant
harder for burdens to run than benefits to run. If elements met, successor will be bound as if she agreed. Elements needed: WITHN
writing, intent, touch and concern, horiz and vertical privity, notice
i. Writing: promise was in writing
ii. Intent: original parties intended that the covenant would run. courts are generous in finding intent. Can be understood through the circumstances or the language of the conveyance.
iii. Touch and concern the land: promise must affect the parties’ legal relations as owners, and not just members of the community. Must pertain to the land.
1. Covenants to pay money to be used in connection with the land (HOA fees) and non-compete covenants DO touch and concern the land.
2. Anything that RESTRICTS USE OF THAT PARCEL or require the holder to DO SOMETHING touches and concerns.
3. Touch and concern involves the relationship between the landowners at law,not a relationship with community as a whole
a. So like a covenant to recycle at a dump 5 miles away does not touch and concern because doesn’t directly benefit the other landowners in use and enjoyment of their land.
iv. Horizontal and vertical privity are both needed for the burden to run.
1. Horizontal privity = some mutual interes in the land independent of the covenant between the two who originally entered the covenant.
horizontal privity = shared interest in the land
vertical privity= entire durational interest
a. E.g. grantor-grantee, landlord-tenant, mortgagee-mortgagor.
2. HARD to establish. It’s likely absence is the reason a burden won’t run. people who don’t have horizontal privity are neighbors or something like that.
3. Exs: A and b were grantor grantee if a was purchasing from b at time promise was made
4. Vertical privity refers to nexus bw A and A-1. anything nonhostile will do, contract, devise or dissent. doesn’t apply for adverse possession. Easier to establish
v. Notice: A1 had notice of the promise when she took.
1. but if A-1 is a donee, and not a BFP, she is not protected by the recording statute and thus is subject to the covenant even without notice.
Remedy for breach of covenant
damages
Termination of covenant 3 possibilities
i. written release,
ii. merger
iii. condemnation
