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MBE > MBE Real Property > Servitudes > Flashcards

Servitudes Flashcards

- Easements - Covenants - Profits - Licenses - Equitable servitudes

1
Q

What are the 5 categories of servitudes?

A
  1. Licenses;
  2. Easements;
  3. Equitable servitudes;
  4. Profits; and
  5. Covenants
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2
Q

Define

easement

A

Right to a non-possessory property interest in land that entitles the owner to use or enjoyment of the land

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3
Q

Define

dominant estate

A

Land/property that benefits from the easement

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4
Q

Define

servient estate

A

Land burdened by the easement

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5
Q

Define

affirmative easement

A

Gives holder the right to affirmatively use the servient estate (i.e. to do something on the servient estate)

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6
Q

Define

negative easement

A

Prevents servient estate from doing something it would otherwise be allowed to do on the land

Only allowed for “LASS”:

  1. Light;
  2. Air;
  3. Support; and
  4. Stream water from an artificial flow
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7
Q

How are negative easements created?

A

Only expressly - must be signed and in writing

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8
Q

Define

easement appurtenant

A

Benefits one parcel of land (dominant estate) while burdening another (servient estate)

⭐️ Attached to the land and not a person

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9
Q

Define

easement in gross

A

Benefits a person or entity instead of a parcel of land. No dominant estate involved, only servient estate.

Ex. Billboard or power lines on servient estate

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10
Q

Can you transfer:

  1. An easement appurtenant?
  2. Easement in gross?
A
  1. Yes, transferred automatically b/c attached to the dominant estate. Does not need to be explicitly stated in the transfer.
  2. Not transferrable unless for commercial purpose
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11
Q

What are 4 ways in which an affirmative easement can be created?

A
  1. Prescription;
  2. Implication;
  3. Necessity; or
  4. Grant (signed in writing)

💡Remember “P-I-N-G”

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12
Q

2 ways to create an express easement?

A
  1. Grant: express grant of easement, signed and in writing by servient estate to satisfy SOF (if easement could exist for longer than one year)
  2. Reservation: grantor conveys title, but reserves right to easement
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13
Q

How do you create an easement by prescription?

A

Similar to acquiring land by adverse possession. Use of easement must be:

  1. Continuous;
  2. Open;
  3. Hostile; and
  4. Actual

⚠️ No exclusivity requirement

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14
Q

What is an easement by implication and how is it created?

A

Easement implied by prior use.

Exists when:

  1. Easement existed on a single tract of land that was subsequently severed into the servient and dominant estate;
  2. Prior use was continous and apparent;
  3. Parties intended the easement to continue; and
  4. Easement is reasonably necessary for enjoyment of dominant estate
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15
Q

When can an easement be implied without prior use?

A
  • If lots are sold in a subdivision with a recorded plat or map
  • If holder has a profit-à-prendre that makes it necessary to use the land to extract materials
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16
Q

What is an easement by necessity and how is it created?

A

Easement is absolutely necessary to access the property

Created if:

  1. Dominant and servient estates were once a single parcel under common ownership; and
  2. Severance of the parcel made the easement absolutely necessary
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17
Q

How do you determine the scope of an easement?

A

Terms or conditions that created it

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18
Q

What constitutes expanding the scope of an easement? Is it allowed?

A

Overusing the easement or going outside the scope of reasonable use.

No, not allowed to unilaterally expand the scope. Servient estate can seek injunction to prevent further violations.

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19
Q

When can the owner of an easement seek contribution for repairs?

A

Only after providing adequate notice and an opportunity for co-owners to participate in repair decisions

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20
Q

What are the 9 ways to terminate an easement?

A
  1. Abandonment;
  2. Destruction of servient estate;
  3. Estoppel;
  4. Expiration;
  5. End of necessity
  6. Merger;
  7. Prescription;
  8. Release; or
  9. Severance.
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21
Q

When does destruction of the servient estate NOT terminate an easement?

A

If servient owner willfully caused the destruction

22
Q

How do you terminate an easement by prescription?

A

Continual interference with the easement for the statutory period

23
Q

How do you terminate an easement by abandonment?

A
  1. Holder takes affirmative action/steps to indicate intent to abandon; and
  2. Actually abandons easement

⚠️ Mere words or nonuse are insufficient to terminate easement

24
Q

How do you terminate an easement by estoppel?

A
  1. Easement holder leads servient estate to reasonably believe they intend to abandon the easement; and
  2. Servient estate detrimentally relies on the holder’s statements
25
Q

How do you terminate an easement by severance?

A

For an easement appurtenant, any attempt to sever the easement from the dominant estate will sever the easement

26
Q

How can you terminate an easement by merger?

A

Owner acquires fee title of underlying estate (i.e. same owner owns both the easement and the servient estate). The easement will “merge” into the title and not be revived unless by new express grant

27
Q

When is an easement by necessity automatically terminated?

A

When the necessity ends

28
Q

What happens if property is sold to bona fide purchaser without notice of the easement?

A

Easement is unenforceable against the BFP

29
Q

Define

profit (“profit à prendre”)

A

Non-possessory right to enter servient estate and remove natural resources from it. Generally governed by the same rules as easements.

Ex. lumber, coal, soil

30
Q

How is a profit terminated?

A

Misuse or overuse of natural resources

31
Q

Define

license

A

Freely revocable, non-possessory right to use the land

32
Q

Is a license transferrable?

A

No, will result in loss of license

33
Q

Differentiate between a license and an easement

A

Licenses:

  • Freely revocable (unless detrimental reliance or coupled with interest)
  • Privilege, not an interest in land
  • Can be created without consideration or writing (no SOF requirement)

Easements:

  • Last for specific period or indefinitely
  • Interest in land
  • Must satisfy SOF
34
Q

Define

covenants

A

Servitudes that either restrict landowners from doing certain things or impose obligations on them

35
Q

Define

real covenants

A

Covenants concerning real property that “run with the land” (i.e. bind successors)

36
Q

Differentiate between an affirmative vs. negative convenant

A

Affirmative: requires landowner to do something

Negative: forbids landowner from doing something

37
Q

What is required for the burden of a covenant to run with the land?

A
  1. Writing: original agreement in writing;
  2. Intent: parties intended to bind successors (courts are liberal in finding requisite intent);
  3. Touches and concerns the land;
  4. Horizontal and vertical privity; and
  5. Notice: successor had notice of the covenant when she took
38
Q

What is required for the benefit of a covenant to run with the land?

A
  1. Writing: original agreement in writing;
  2. Intent: parties intended benefit to run;
  3. Touches and concerns the land; and
  4. Successor is in vertical privity with original parties

⚠️ Horizontal privity is not required

39
Q

What does it mean for a covenant to “touch and concern” the land?

A

Covenant affects both parties as landowners, not as individuals (very low bar)

40
Q

Define

horizontal privity

A

Relationship between original covenant parties.

Examples:

  • Grantor-grantee
  • Mortgagor-mortgagee
  • Landlord-tenant

⚠️ Note: Difficult to establish

41
Q

Define

vertical privity

A

Relationship between original party and successor (contract, descent, devise)

42
Q

What is the remedy for the breach of a covenant?

A

Monetary damages

43
Q

Are racially based covenants enforceable?

A

Never, would violate 14th Amendment

44
Q

How do you terminate a covenant?

A
  1. Release (in writing);
  2. Merger; or
  3. Condemnation
45
Q

Define

equitable servitudes

A

Covenants enforced by equity (e.g. injunctions)

46
Q

Elements for an equitable servitude

A
  1. Writing: original agreement in writing;
  2. Intent: original parties must intend to bind successors;
  3. Touches and concerns the land;
  4. Notice: burdened party had actual, record, or inquiry notice (not required for benefit to run)
47
Q

What is an implied reciprocal negative servitude and what are the requirements?

A

Also called the “common scheme doctrine.” Allows owners in a subdivision to enforce restrictions on an unrestricted lot owner

Requirements:

  1. When sales began, developer had a common scheme for subdivision; and
  2. Owner of unrestricted lot had notice (actual, record, or inquiry) of the restriction
48
Q

What is evidence of a common scheme?

A
  • Recording a map detailing the scheme;
  • Putting restrictions in lot deeds; or
  • Letting purchasers know about the plan orally
49
Q

For the purposes enforcing a reciprocal negative servitude, what is:

  1. Actual notice?
  2. Inquiry notice?
  3. Record notice?
A
  1. Actual: Literal knowledge of restriction
  2. Inquiry: Reasonable neighborhood inspection would indicate common restrictions (ie all houses are single family home)
  3. Record: Restriction is in owner’s chain of title
50
Q

What are defenses to enforcement of equitable servitudes?

A
  1. Pervasive changes that fundamentally alter the neighborhood;
  2. Laches;
  3. Estoppel;
  4. Acquiescence (when party didn’t enforce the servitude on other parties, so their right to enforce may be waived)
  5. Unclean hands (party seeking enforcement is violating restriction on their own land)
51
Q

What is the remedy for the breach of an equitable servitude?

A

Injunction

52
Q

Define

nuisance

A

Unreasonable interference with use and enjoyment of land

MBE Real Property (6 decks)

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