Servitudes Flashcards
What are the 4 ways of creating an affirmative easement?
(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)
When is an easement appurtenant transferred automatically?
With the dominant tenement
What kind of easement is only assignable?
An easement in gross for commercial purposes
What is the remedy for violating an easement?
injunction or damages
What are the 4 kinds of negative easements?
(1) Light
(2) Air
(3) Support
(4) Streamwater
[minority] Scenic view
How can a negative easement be created?
only by a writing signed by grantor
How can a real covenant be created?
only by a writing signed by grantor
What is necessary for a real covenant’s burden to run to successors?
Satisfy all: •Writing •Intent •Touch and concern the land •Horizontal and vertical privity, and • Notice
What is necessary for a real covenant’s benefit to run to successors?
Satisfy all: • Writing • Intent • Touch and concern • Vertical privity
What is the remedy for violation of a real covenant?
Damages
How is an equitable servitude created?
Satisfy either:
• writing signed by grantor
• implication by General Scheme Doctrine
When are successors bound by equitable servitudes?
Satisfy all: • Writing • Intent • Touch and concern • Notice (vertical privity not required)
What is the remedy for violation of equitable servitudes?
injunction
What is the majority rule for creating a reciprocal negative servitude under the general scheme doctrine?
- subdivision
- residential restriction contained in prior deeds conveyed by common grantor
- common scheme at start of subdividing
- unrestricted lot holders had notice
What is the minority rule for creating a reciprocal negative servitude under the general scheme doctrine?
subsequent grantees not bound unless their lots are expressly restricted in writing
Who is bound by reciprocal negative servitudes under the general scheme doctrine?
where a common scheme exists, subsequent purchasers with notice are bound
What is the remedy for reciprocal negative servitudes under the general scheme doctrine?
injunction
When a BFP buys a servient estate without notice of the easement, what is the effect on the easement?
The burden does not pass to the new owner of the servient estate.
What are the requirements for easement by prescription?
(1) Continuous use for statutory period
(2) Open and notorious use
(3) Actual use
(4) Hostile use (w/o servient owner’s consent)
What determines the scope of an easement?
Either:
• terms of the grant, or
• the conditions that created it
How can an easement be terminated?
- 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)
What is a license?
mere privilege to enter another’s land for some delineated purpose
Are licenses subject to the Statute of Frauds?
no
When may a licensor revoke the license?
anytime, unless estoppel applies to bar revocation
What is the effect of creating an oral easement?
A license is created
What circumstances create estoppel to bar revocation of a license?
When licensee has invested substantial money and/or labor
What is the holder of a profit entitled to?
enter the servient land and take from it soil or some substance of the soil (e.g., minerals, timber, or oil)
What rules govern profits in land?
All the same rules as easements
