Servitudes

Question 1

Servitudes list

Answer 1

Servitudes are non-possessory rights (to do or to control) on real property ​

1. Easement (right to use someone else land or prevent someone from using it)
2. Profit (right to take something for the land)
3. License (revocable right to use the land)
4. Covenant (right to prevent or force something in someone else land)
   
   1. Real Covenant (Court of law right to prevent or force something in someone else land)
   2. Equitable Servitude (Court of equity right to prevent or force something in someone else land)

Question 2

What is an easement

Answer 2

An easement is a type of servitude,

A non-possessory property interest that confers a right to use another’s land for an specific purpose

• Servient estate = burdened land
• Dominant estate = benefited land (not always applicable)

Question 3

Types of easement ( classifications)

Answer 3

Classification by the involvement of one or two lands:

• Easement appurtenant - entitles a dominant estate owner to use a servient estate’s land
• Easement in gross - entitles an individual or entity (not a dominant landowner) to use the servient estate

Classification because of the rights it gives

• Affirmative easement- entitles its holder to make affirmative use of the servient estate (Use of a road to cross)
• Negative easement- entitles its holder to restrict the servient estate from otherwise permissible activities (ELEMENTAL RESTRICTIONS) (LASS) (e.g.
  
  • L (Light) A (Airflow, view) S (Support) S (Stream of water)

Classification because whether is commercial or personal

• Commercial purpose (benefit)
• Personal enjoyment

Question 4

Easement that are personal and commercial

Question 5

Classification by the involvement of one or two lands:

Answer 5

Classification by the involvement of one or two lands:

• Easement appurtenant - entitles a dominant estate owner to use a servient estate’s land
  
  • Attaches to the dominant estate and passes automatically (even if not mentioned in a conveyance)
• Easement in gross - entitles an individual or entity (not a dominant landowner) to use the servient estate
  
  • The benefit does not attach to land; there is no dominant estate, but the burden does.
  • E.g., right to place a billboard on another’s lot, right to run utility line across land, right to fish in another’s pond
  • Similar to a license, but irrevocable; may be transferred

Question 6

How do you create an Easement? (PING)

Answer 6

PING

• Prescription
• Implication
• Necessity
• Grant or reservation

Question 7

Scope of Easement (Expansion)

Answer 7

An easement’s scope is determined by the terms or conditions that created it. In interpreting an easement’s scope, courts will consider the reasonable intent of the original parties

• Easement holders cannot unilaterally expand the scope of their easement (e.g., through overuse or misuse)
  
  • Overuse or misuse of an easement does not terminate the easement
  • Creates a Remedy for violation = injunction (Servient owner’s remedy is an injunction)

Question 8

Transfer exceptions for easements

Answer 8

All easements transfer automatically with the land. However, there are two exceptions:

1. Personal easement in gross: the burden of the easement transfers, but not the benefit.
2. Bona fide purchaser: If a purchaser doesn’t know or shouldn’t know about the burden of the easement, he takes free from the easement

Question 9

Creation of easement by express grant or reservation

Answer 9

Easements may be expressly created by grant or reservation

• Grant - an express grant of the easement
  
  • Created by instrument (e.g., written agreement) in which the servient estate owner gives easement to owner of dominant estate
• Reservation - granter conveys title to land but reserves the right to continue using the land for a designated purpose
  
  • Granter may only reserve an easement for himself
    
    • Void if reserved for the benefit of another
    • E.g., 0 conveys property to A, reserving an easement allowing access to a path across the property

Question 10

Requirements of a creation of an easement by grant

Answer 10

Requirements - express easements must be:

1. In writing (otherwise will violate SoF); and
2. Signed by the servient estate holder;

Question 11

Creation of easement by prescription

Answer 11

A process of acquiring an easement; similar to acquiring title by adverse possession. Is not called adverse possession because is to obtain an easement (nonpossessory right)

Requirements (CHAO) - acquirer’s use of another’s land must be:

1. Continuous – for the applicable statutory period
2. Hostile - without owner’s permission
3. Actual & Exclusive use - the owner does not use the land
4. Open and notorious - owner knows or should know of the easement

Note - an easement can also be terminated by prescription if the servient landowner interferes with the easement sufficiently to satisfy the above requirements

Question 12

Creation of Easement By Implication

Answer 12

An easement legally implied based on prior use by a common granter on land subsequently divided into multiple plots

Requirements:

1. Easement exists prior to division of a single tract of land;
2. Common grantor’s use is continuous and apparent;
3. Use is reasonably necessary for enjoyment of the dominant tenement; and
4. Parties intended the use to continue after division of the land

Question 13

Easement by implication exceptions to prior use

Answer 13

Exceptions – easement may be implied without prior use where:

1. Subdivision plat - lots in a subdivision are sold with reference to a map plan, or
2. Profit a prendre - holder of a profit a prendre has an implied easement to pass over the land’s surface as reasonably necessary to extract materials (e.g., wood, coal)

Question 14

Creation of easement by necessity

Answer 14

An easement can arise if access to or from a property is impossible without the easement (i.e., the easement’s existence becomes necessary)

• Creation - usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to a public road or utility
  
  • The owner of the servient estate can choose a reasonable location for the easement
• Termination - expires automatically when the necessity ends
• Easement by necessity may only be used for easement of access

Question 15

Difference between an easement by implication and by necessity

Answer 15

They both have a prior common ownership requirement, however, the difference is that:

• Necessity: Requires STRICT necessity
• Implication: Requires reasonable necessity

Question 16

Negative easements (definition and category)

Answer 16

Entitles the holder to prevent the servient landowner from engaging in otherwise permissible actions on his own land

Four categories of acts may be prevented:

1. Light
2. Air
3. Support
4. Stream of water from an artificial flow

Creation - can only be created by an express grant (writing signed by grantor)

Note -restrictive covenants are utilized more frequently than negative easements to prevent a landowner from engaging in certain activities on their land

Question 17

How can you terminate an easement (MR CAPEND)

Answer 17

1. Merger:
   
   • the same person owns the servient land and the easement
2. Release
   
   • Written deed of release is given
3. Condemnation
4. Abandonment
   
   • Physical act required, mere words insufficient
5. Prescription
   
   • CHAO, but without the Actual element
6. Estoppel
   
   • Material changes in position, caused by the holder conduct and representations
7. Necessity ends
   
   • the easement extinct because of the extinction of the necessity
8. Destruction
   
   • unless is willing destruction by the servient owner

Question 18

License

Answer 18

Is a type of easement, a License is a right to use another person’s (licensor’s) land, which is revocable at the licensor’s will

• Not an interest in land – license is a privilege, not an interest in land (distinguish from affirmative easement)
• Revocable - licensor may revoke the privilege at any time, unless estoppel applies
• Inalienable- may not be assigned or transferred (Any attempt to do so revokes the license)
• No SoF requirement - a license may be oral or written; they can result from easements that are invalid under the SoF. A license that fails to be on a written form would be a license.
  
  • E.g., an oral grant of a permanent easement between neighbors may result in a license b/c SoF not satisfied
    
    • Stoppel could make a license enforceable
    • E.g., oral permission for neighbor to use licensor’s pool, theater tickets (grant a license to ticket holders), right to use a parking lot

Question 19

Profit

Answer 19

Profit - a non-possessory property interest (positive easement on land) entitling its holder to enter a servient estate to remove resources (e.g., minerals, timber, soil, fish)

• All rules governing easements apply to profits (i.e., creation, transferability, and termination)
• Extinguishment – a profit may be extinguished through misuse or overuse of resources on the servient estate

Question 20

Covenants (general definition)

Answer 20

A promise (contract law creation) included in a contract or a deed, to do or refrain from doing something related to land

• A contractual limitation or promise regarding land
• Note – covenants are not property interests (like an easement)
• Covenants can be positive (affirmative) or negative (restrictive)

Question 21

Types of covenants

Answer 21

• Affirmative covenant - a promise to do something related to land
• Restrictive covenant - a promise to refrain from doing something related to land

And (depending on the enforceability):

• Real Covenant: a covenant that comes from the application of law
• Equitable servitude: a covenant that comes from the application of equity

Question 22

Termination of a Covenant (MR CAPACE)

Answer 22

Just like Mr CAPEND, but with a different ending (no necessity or destruction)

1. Merger:
   
   • the same person owns the servient land and the covenant
2. Release
   
   • Written termination of the right of benefit
3. Condemnation
4. Abandonment
   
   • Physical act required by the person benefited by the covenant.
5. Prescription
   
   • CHAO, the burdened owner of the land uses it without following the covenant
6. Agreement
   
   • Agreement to terminate the covenant
7. Changed Conditions
   
   • Covenant is unenforceable when the circumstances change so much that the covenant doesn’t bring a benefit
8. Estoppel
   
   • Material changes in position, caused by the conduct and representations of the party benefited by the covenant

Question 23

How a covenant transfers?

Answer 23

Depends on whatever the transferred covenant is a burden or a benefit. Covenants transfer between parties (not necessarily landowner)

Burden transferring: WITHVN

Benefit transferring: (less requirements): WITV

Question 24

How to transfer of a burden created by a covenant

Answer 24

A successor in interest to the burdened estate will be bound by a covenant if the requirements below are satisfied

1. Writing - original covenant was in writing
2. Intent- parties intended to bind successors in interest
   
   • Look to language of the covenant; courts are liberal in construing requisite intent
3. Touches and concerns the land - covenant must affect parties’ legal relations as landowners (a very low standard)
   
   • Homeowner association fees satisfy this requirement
4. Horizontal and vertical privity - must exist between interested partie
   
   • Horizontal privity- relationship between the covenanting parties (e.g., granter/grantee, landlord/tenant, mortgagor/mortgagee)
   • Vertical Privity- voluntary relationship between covenanting parties and their successors in interest ( e.g., contract, devise, descent)
5. Notice - successor in interest had notice of the covenant when she took her interest
   
   • Actual
   • Inquiry
   • Record

Question 25

How to transfer of a benefit created by a covenant

Answer 25

A successor in interest to the benefiting estate may enforce the covenant if the requirements below are satisfied

Requirements:

1. Writing - original covenant was in writing
2. Intent - original parties intended benefit to run with land
   
   • Look to language of the covenant; courts are liberal in construing requisite intent
3. Touches and concerns the land
   
   • The covenant must affect parties’ legal relations as landowners (a very low standard)
4. Vertical Privity - successors in interest are in vertical privity with the original covenanting parties (e.g., through contract, devise, or descent)
   
   • Horizontal privity is not required for majority of states

Question 26

Equitable Servitude

Answer 26

Equitable servitudes are covenants enforced in equity against successors through injunctive relief (i.e., injunction is the remedy)

• I.e., a covenant that will be enforced against successors of the burdened land who have notice of the covenant
• Privity is not required to bind successors
• Equitable servitudes have ONLY the remedy of the injunction

Question 27

Transfer of a covenant as an equitable servitude

Answer 27

Depending of whether your are transferring a burden or a benefit the requirements are different

Burden transfer: WITN

1. Writing - written promise
2. Intent- original parties must intend to bind successors
3. Touches and concerns the land
4. Notice - successors of the burdened land had notice

Burden transfer: WIT, no notice is required

Question 28

Defenses to the enforcement of an equitable servitude

Answer 28

Defenses to enforcement- a court will not enforce an equitable servitude if any of the following conditions exist:

1. Pervasive changes in the neighborhood
2. Estoppel
3. Acquiescence
4. Unclean hands
5. Laches

Question 29

Exception to the transferability of equitable servitudes

Answer 29

implied equitable servitude - may be implied from a common scheme for development of a residential subdivision

Requirements:

• General scheme: A developer builds a real estate development with the same physical characteristics, this the covenant affects all properties
• Notice:
  
  • Actual (e.g. deed)
  • Inquiry (physical similitudes will compel someone to inquiry)
  • Recording (the covenant was recorded)

Question 30

More on implied equitable servitude (aka Reciprocal Negative Servitudes)

Answer 30

Lot owners in residential subdivisions may enforce restrictions on the use of property against other subdivision lot owners (May be implied from a common development scheme of a residential subdivision)

Created through implication if:

1. General/common scheme - when sales began, the developer had a general scheme for all parcels of the subdivision, including the subject lot
   
   • Common scheme may be evidenced through:
     
     1. Recorded plat,
     2. General pattern of restrictions, and/or
     3. Oral representations to early buyers
2. Notice - owner of the subject lot had notice of the covenants in the deeds of other subdivision lots

• Notice may be one of three types:

1. Actual - literal knowledge of covenants,
2. Inquiry - character of the neighborhood indicates a common restriction, or
3. Record - chain of title for the owner’s lot includes a prior deed containing a covenant

Question 31

Describe what is adverse possession (essay)

Answer 31

A trespasser may acquire title to another’s property without compensation by possessing the property for a specified period, in a manner conflicting with the true owner’s rights

Question 32

Requirements for adverse possession CHAO

Answer 32

1. Continuous for the statutory period - possession must be similar to an ordinary owner’s use of the property
   
   • Daily possession is not required if an ordinary user would not use the property daily (e.g., winter cabin)
2. Hostile - possession must be without owner’s permission
   
   • No intent or knowledge required from the trespasser
3. Actual and exclusive - must possess a reasonable portion of the property to the exclusion of the owner and the public
4. Open and notorious - trespasser’s possession must be conspicuous, such that the true owner would know of the trespass if he inspected his property regularly
   
   • Owner need not actually know of the trespasser’s use

Question 33

Can a Tenant use Adverse Possession?

Answer 33

No,

if a tenant stays in possession after a lease has expired, he is presumed to have permission (i.e., tenancy at sufferance arises, as opposed to the beginning of an adverse possession period)

Question 34

How adverse possession works in these cases?

• Disability
• Future Interests
• Govt Land

Answer 34

• Disability- Sol does not begin to run if the true owner was under some disability when the adverse possession began
• Future interests - Sol does not run against future interest holders until the interest becomes possessory
• Govt. land - cannot be acquired through adverse possession

Question 35

Taking in adverse possession, what it is?

Answer 35

Adverse possessors can tack together successive periods of adverse possession to satisfy the statutory period, even if successive possession was by different adverse possessors

• Must be successive - there cannot be gaps between periods of adverse possession
• Privity- requires privity between successive adverse holders
  
  • Satisfied if subsequent possessor takes by descent, devise, or by deed purporting to convey title (NOT HOSTILE, NO OUSTING)
    
    • I.e., tacking not permitted if one adverse claimant ousts the preceding claimant

Question 36

What is the difference between ousting in Tacking and ousting in a concurrent estate?

Answer 36

• Tacking: ousting terminates the continuity of the possession. The ousting is made by someone not owning the property
• Concurrent estates: Normally a co-tenant holding the possession of the land would not be able to use adverse possession to take the entire title of the property. NO HOSTILITY ELEMENT.
  
  • Here the ousting is made by someone with title to the property
  • However, if the co-tenant P oust the non-P co-tenant then he would be able to take the whole title

Question 37

Adverse possession between concurrent owners

Answer 37

co-tenants may not adversely possess each others’ interests unless ouster has occurred

• I.e., to adversely possess a co-tenant, the co­tenant must be excluded from the land for the statutory period
• The statutory period begins once exclusion begins

Question 38

Restrictive Covenants when adverse possession is made

Answer 38

will not run with the land if the adverse possessor’s use of land violated the covenant; but covenant will run if the adverse possessor’s use complied with the covenant

Question 39

Can an adverse possessor lease the land?

Answer 39

adverse possessors can lease a portion of the land to a third party and still possess the property

Question 40

Color of title and adverse possession

Answer 40

Color of title - a claim of title to property not actually owned

• Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property

Question 41

Adverse possession and marketable title

Answer 41

title taken by adverse possession is not marketable, unless there has been an action to quiet title

Question 42

What is the duty of repair on an easement

Answer 42

Duty to repair

• Easement holder has a duty to make repairs if he is the sole user
• If both the servient landowner and the easement holder use an easement, the repair costs are apportioned