Servitudes

Question 1

What are the 4 ways of creating an affirmative easement?

Answer 1

(1) Prescription (adverse possession)
(2) Implication (previous use was apparent, parties expected it to continue b/c it is reasonably necessary to to dominant land’s use and enjoyment)
(3) Necessity (division of a tract deprives one lot of means of access out)
(4) Grant (writing signed by grantor)

Question 2

When is an easement appurtenant transferred automatically?

Answer 2

With the dominant tenement

Question 3

What kind of easement is only assignable?

Answer 3

An easement in gross for commercial purposes

Question 4

What is the remedy for violating an easement?

Answer 4

injunction or damages

Question 5

What are the 4 kinds of negative easements?

Answer 5

(1) Light
(2) Air
(3) Support
(4) Streamwater
[minority] Scenic view

Question 6

How can a negative easement be created?

Answer 6

only by a writing signed by grantor

Question 7

How can a real covenant be created?

Answer 7

only by a writing signed by grantor

Question 8

What is necessary for a real covenant’s burden to run to successors?

Answer 8

Satisfy all:
•Writing
•Intent
•Touch and concern the land
•Horizontal and vertical privity, and
• Notice

Question 9

What is necessary for a real covenant’s benefit to run to successors?

Answer 9

Satisfy all:
• Writing
• Intent
• Touch and concern
• Vertical privity

Question 10

What is the remedy for violation of a real covenant?

Answer 10

Damages

Question 11

How is an equitable servitude created?

Answer 11

Satisfy either:
• writing signed by grantor
• implication by General Scheme Doctrine

Question 12

When are successors bound by equitable servitudes?

Answer 12

Satisfy all:
• Writing
• Intent
• Touch and concern
• Notice
(vertical privity not required)

Question 13

What is the remedy for violation of equitable servitudes?

Answer 13

injunction

Question 14

What is the majority rule for creating a reciprocal negative servitude under the general scheme doctrine?

Answer 14

• subdivision
• residential restriction contained in prior deeds conveyed by common grantor
• common scheme at start of subdividing
• unrestricted lot holders had notice

Question 15

What is the minority rule for creating a reciprocal negative servitude under the general scheme doctrine?

Answer 15

subsequent grantees not bound unless their lots are expressly restricted in writing

Question 16

Who is bound by reciprocal negative servitudes under the general scheme doctrine?

Answer 16

where a common scheme exists, subsequent purchasers with notice are bound

Question 17

What is the remedy for reciprocal negative servitudes under the general scheme doctrine?

Answer 17

injunction

Question 18

When a BFP buys a servient estate without notice of the easement, what is the effect on the easement?

Answer 18

The burden does not pass to the new owner of the servient estate.

Question 19

What are the requirements for easement by prescription?

Answer 19

(1) Continuous use for statutory period
(2) Open and notorious use
(3) Actual use
(4) Hostile use (w/o servient owner’s consent)

Question 20

What determines the scope of an easement?

Answer 20

Either:
• terms of the grant, or
• the conditions that created it

Question 21

How can an easement be terminated?

Answer 21

• Estoppel (servient owner materially changes his position in reasonable reliance one easement holder’s assurance that the easement will not be enforced)
• Necessity (easement by necessity’s need ends)
• Destruction (of the land, except through the willful conduct of the servient owner)
• Condemnation of the servient estate
• Release (written by holder to servient owner)
• Abandonment (physical action to to signify abandonment)
• Merger (easement and title to servient land become vested in the same person)
• Prescription (servient owner extinguishes easement through adverse possession)

Question 22

What is a license?

Answer 22

mere privilege to enter another’s land for some delineated purpose

Question 23

Are licenses subject to the Statute of Frauds?

Answer 23

no

Question 24

When may a licensor revoke the license?

Answer 24

anytime, unless estoppel applies to bar revocation

Question 25

What is the effect of creating an oral easement?

Answer 25

A license is created

Question 26

What circumstances create estoppel to bar revocation of a license?

Answer 26

When licensee has invested substantial money and/or labor

Question 27

What is the holder of a profit entitled to?

Answer 27

enter the servient land and take from it soil or some substance of the soil (e.g., minerals, timber, or oil)

Question 28

What rules govern profits in land?

Answer 28

All the same rules as easements