Servitudes Flashcards
Servitude Benefits
- (1) secure expectations and identity interests in the land, (2) encourage investment, and (3) encourage alienation of land
Problems
- (1) burden land with useless or outdated restrictions, (2) undermine broader policy goals, or (3) unfairly surprise and undermine expectations of new purchasers of the land (as holders of the benefit and burden of the servitude disagree as to how the land should be used)
Evaluate servitude law according to how successfully it balances conflicting policy concerns 4 Questions
- Do formal requirements for creation of servitudes help ensure that the parties creating the servitude truly intend to bind the land and that future owners have notice of the servitude’s existence?
- Do rules for interpretation of ambiguous servitudes further the presumed intent of the parties, prevent unfair surprise, and ensure that the land serves public interests?
- Do substantive restrictions on servitudes ensure that they increase land value and do not undermine other important policy goals?
- Do rules for termination end servitudes that no longer serve party’s intent or that unduly burden the land?
Easement
nonpossessory rights to use another’s land that run with the land
Appurtenant easement
- When the benefit runs with land as if it were attached to that particular parcel of land
- Cannot be severed from the land - transferable by definition, when the dominant estate is conveyed
Easement in gross
- When the benefit does not run with the land, and is not attached to a particular parcel of land, so there is no dominant estate (benefit of servitude held by a particular individual) (utility lines, owned by utility companies that may own no property in the immediate vicinity of the easement)
- Traditionally, easements in gross were not transferable - Now, generally held to be transferable
- Profits (rights to enter land to remove material such as minerals or timber) were always alienable
Leases
possessory rights to use a defined space for all uses not explicitly or implicitly prohibited in the lease
License
A right, revocable at will by the grantor, granted by a possessor of real property to non-owners permitting entrance on their property - Does not run with the land (revocable at will, non-transferable, and non-devisable)
- Not protected by the takings clause of the Constitution or subject to the SOF
- Often intended to be temporary and for specific purposes
- No writing is required and licenses are often implied by circumstances
- E.g., a store open to the public invites the public in to browse or shop (only trespass after refusing to leave)
Four EXCEPTIONS to free revocation of licenses:
- License granted in return for consideration may become a K – subject to damages and other K remedies
- License coupled with interest: An owner who sells personal property that is located on her land to another generally gives permission to the purchaser to enter the land to remove the licensee’s personal property
- Promises to grant a license: An owner can revoke a license it has promised to grant (e.g,. a movie ticket), however the ticketholder can sue the theater owner for a breach of contract
- Easements by estoppel: An owner who induces the licensee to act in reasonable reliance on the license may be prevented by the court from revoking the license
- Can occur when the grantor (1) grants an easement orally; (2) in a writing that does not comply with the specific requirements of the local SoF; (3) in the case of an ambiguous deed reference; or (4) if the grantor committed fraud by deceiving the grantee
- Some courts will only grant an easement by estoppel if there is fraud
Easement vs. License
- focus on whether the parties intended to create a temp or permanent right and whether other policy considerations support or forbid creation of the easement
The Statute of Frauds:
- Easements are interests in land that are generally required to be in writing before they will be enforceable
- Need writing signed by the grantor and sufficiently describe the easement and the grantee
- Numerous exceptions to the statute of frauds: (a) prescriptive easements; (b) easements by estoppel; (c) by implication; (d) by necessity; and (e) constructive trusts.
Express easements are created 5 things
- (1) by deed (normally only signed by the grantor) in which (2) the named grantor (3) recites that she grants an easement (4) of a certain description to the (5) named grantee
Limits on negative easements
- Traditionally limited to three kinds:
- The right to lateral support of one’s building;
- The right to prevent both light and air from being blocked by construction on neighboring land; and
- The right to prevent interference with the flow of an artificial stream such as an aqueduct
- Newly recognized negative easements include, generally created or recognized by statute:
- Conservation easements (preventing development of land for environmental purposes);
- Historic preservation easements (preventing destruction or alteration of buildings that have historical or architectural importance); and
- Solar easements (protecting access to sunlight for solar energy)
When does an easement run with the land?
- Easements created by an express agreement run with the land only if (1) the easement in writing** (2) subsequent owners had **notice** of the easement at the time of purchase of the servient estate (3) the original grantor who created the easement **intended the easement to run with the land