Servitudes

Question 1

Servitude

Answer 1

a non possessory interest in the fee of another

Question 2

Easement

Answer 2

a non possessory interest in the land of another that gives it’s holder the right to use

Question 3

3 kinds of easements

Answer 3

affirmative, negative, and “related mechanism”

Question 4

Negative easement

Answer 4

Gives the owner that right to restrict the use of land owned by another person. (it is a very limited right)

Question 5

How many kinds of negative easements are there and what are they?

Answer 5

5!!!!

• Flow of air/light ex. solar panels
• Support of building ex. excavation
• Artificial stream (NOT natural streams)
• Viewshed ex. scenic views
• Conservation (usually to preserve resources for “best use”)

Question 6

Affirmative easement

Answer 6

Gives the holder the right to make some LIMITED use of the land possessed by another. (usually for a very particular purpose). This is the most common (modern) kind of easement.

Question 7

What are the two ways in which someone can get an express affirmative easement?

Answer 7

• By grant: when the owner of the servient estate executes and delivers a conveyance which contains an easement to the owner of the dominant estate.
• By reservation: when a grantor conveys a deed for possessory estate but retains in THEMSELVES an easement over the servient estate.

Question 8

What are the three ways in which an implied affirmative easement can be obtained?

Answer 8

• By necessity : must have prior common ownership of the servient estate, with no other points of access to your parcel. Lasts only until some other route of access to your parcel is not present.
• By plat: prior common ownership, plat shows and easement and you relied on it (reasonably).
• By pre-existing use: prior common ownership, prior use, and continuous and apparent use test.

Question 9

5 element test to prove continuous and apparent use for an affirmative easement.

Answer 9

1. Whether the claimant was the grantor or grantee of the dominant estate. (better to be a grantee because if mistake is made it isn’t your fault)
2. The extent of the necessity of the easement.
3. Whether the reciprocal benefits accrue to the grantor and grantee. (do both parties have some benefit?)
4. The manner in which the land was used prior to conveyance. (if it is the same use as being sought now then it is favored)
5. Whether the prior use was or might have been known to the parties. (if “apparent” parties can’t claim “not knowing”)

Question 10

What is an appurtenant easement?

Answer 10

it “attaches” to the ownership of the dominant estate in land (it is attached to the actual dirt) and is typically freely transferable.

Question 11

What is an in gross easement?

Answer 11

Where it attaches to the individual being conveyed the easement, it does not attach to the dirt. It is not freely transferable unless in a commercial context.

Question 12

Rule of construction for in gross versus appurtenant.

Answer 12

Most jurisdictions favor an easement appurtenant over in gross.

Question 13

Rule of construction for burden of repairs or maintenance of easements.

Answer 13

In absence of express language, common law apportions maintenance casts according to the amount of use by both parties.

Question 14

What are the ways in which an easement can be terminated?

Answer 14

• By written conveyance and release
• By merger of dominant and servient estates
• By prescription (adverse interference that deprives the holder of his right to use)
• By abandonment (mere non use is usually not enough and intent to abandon which is determined by behavior)

Question 15

What are the kinds of “related devices”?

Answer 15

1. Profits - a property right that allows the holder to remove something from the land of another (i.e. usually timber, ice, etc)
2. Licenses - a contractual right to use the land of another which is revocable by the owner.

Question 16

When can a licensor be estopped from revoking a license?

Answer 16

When the licensee can prove a reasonable and detrimental reliance upon having the license.

Question 17

What are the two types of promissory servitudes?

Answer 17

Real covenants and equitable servitudes.

Question 18

What are the two major differences between the two types of promissory servitudes?

Answer 18

The remedy and the elements needed to be shown in order to win.

Question 19

What remedy is available in an equitable servitude?

Answer 19

Where an injunction is granted by the court of specific performance is ordered.

Question 20

What remedy is typical in a real covenant?

Answer 20

Damages (i.e. money)

Question 21

What elements must be proven to show an equitable servitude?

Answer 21

The plaintiff has to show that the parties intended the servitude to bind their successors, that it touched and concerned the land, and that the successor had notice of the servitude.

Question 22

What elements must be proven to show a real covenant?

Answer 22

The plaintiff has to show that the parties intended the servitude to bind their successors, that it touched and concerned the land, that the successor had notice of the servitude, and that there was privity of estate.

Question 23

What do we look at to see the intent to bind element?

Answer 23

the writing to see if there is a manifestation of intent.

Question 24

What do we typically look at to see the notice element?

Answer 24

we look to see whether the conveyance was recorded in the deed books.

Question 25

What do we mean when we say that something “touches and concerns” the land?

Answer 25

When it has a NET POSITIVE effect on land utility. That there is an impact on the utility, value, and marketability of the land.

Question 26

What are the two types of privity?

Answer 26

Horizontal - focuses on the relationship between the ORIGINAL PARTIES to the covenant.
Vertical - focuses on the relationship between an ORIGINAL PARTY and a SUCCESSOR

Question 27

What kind of interest must the original parties have had for horizontal privity to exist?

Answer 27

1. Mutual interest: where both of the original parties have a property interest in the SAME parcel (ex. when there is an easement across the fee of another)
2. Successive interest: where the original parties stood in a grantor/grantee relationship to each other.

Question 28

What is needed for vertical privity to exist?

Answer 28

The successor must have taken the ENTIRE interest from an original party.

Question 29

What is meant when we “enforce the burden”?

Answer 29

when we enforce the restriction against anyone AGAINST a successor. (can be a successor or an original party)

Question 30

What is meant when we “enforce the benefit”?

Answer 30

The person seeking enforcement is ALWAYS a successor to the covenant and the other party is an ORIGINAL PARTY.

Question 31

What happens to the privity element when we enforce the benefit?

Answer 31

It is relaxed/presumed, therefore you can prove an equitable servitude but get damages as the remedy.

Question 32

Restatement Third of Servitudes

Answer 32

§3.1: General rule: A servitude is valid…unless it is illegal or unconstitutional or violates public policy. Servitudes that are invalid because they violate public policy include, but are not limited to:

(1) Servitudes that are arbitrary, spiteful, or capricious
(2) Servitudes that unreasonably burden fundamental constitutional rights
(3) Servitudes that impose unreasonable restraints on alienation
(4) Servitudes that are unconscionable

Question 33

Arbitrary

Answer 33

Purpose not legitimate or means adopted to have no reasonable relationship to accomplishment of purpose

Question 34

Spiteful

Answer 34

Primary purpose was to cause harm to another, rather than to secure a benefit to creating party/parties

Question 35

Capricious

Answer 35

Generally no legitimate purpose for creating servitude is discernible

Question 36

How do we gauge what is an unreasonable restraint?

Answer 36

By weighing utility or restraint against the injurious consequences of enforcing the restraint.

Question 37

What is the main theory behind an implied easement?

Answer 37

That the parties intended to create it, but failed to document it in the deed/instrument.