Servitudes Flashcards
Creating Affirmative Easements
REMEMBER P-I-N-G
P: Prescription
- COAH (continuous, open and notorious, actual, hostile).
I: Implication
- Implied from prior use; at time land is secured, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended.
N: Necessity
- Division of a tract deprives one lot of means of access out.
G: Grant
- Writing signed by grantor.
Parties Bound by Affirmative Easement
- Easement appurtenant is transferred automatically with dominant tenement.
- Easement in gross for commercial purposes is assignable (can’t transfer personal easements).
Negative Easements
Defined: The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
Created: Must be created by an express agreement, signed by the grantor.
Four Categories: L-A-S-S
- Light, Air, Support, Streamwater from artificial flow.
NOTE: Minority of states recognize a fifth catefory for scenic views.
Equitable Servitudes
- Written and signed by grantor (unless implied by general scheme doctrine):
WITNes:
- W: Writing
- I: Intent
- T: Touches and concerns
- N: Notice
Remedy: Injunction only.
Reciprocal Negative Servitude (Common Scheme)
Majority, in a subdivision, residential restriction contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction if at start of subdividing, grantor had:
- (i) common scheme and
- (ii) unrestricted lot holders had notice.
(Note: Minority rule will not bind subsequent grantees unless their lots are expressly restricted in writing.)
Remedy: Injunction only.
Voiding Common Development Scheme:
- In order to void a covenant in a common development scheme, there must be changed conditions must affect every parcel.
Termination of an Easement
END CRAMP
- E: Estoppel
- N: Necessity (never in writing, only landlocked)
- D: Destruction
- C: Condemnation
- R: Release
- A: Abandoment (mere non-use is never enough, need act and intent)
- M: Merger (Same party, same interest)
- P: Presciption (COAH - but no exclusivity is neeeded just use).
License
Rule: A license is not an interest in land, but merely a privilege. Therefore, licenses are freely revocable.
- A failed attempt to create an easement creates a license.
Irrevocable Licenses:
- Estoppel: Licensee invests substantial amount of money or labor in reliance of the license, the licensor is estopped to revoke.
- License coupled with interest: For example, the vendee of a chattel may enter seller’s land to remove the chattel, and a future interest holder may enter and inspect the land for waste.
Profit
Defined: Entitles profit holder to take some resources from the servient estate. Implied in profits are rights to enter land to remove resources.
- Rules governing easements also govern profits.
- Additionally, a profit can be extinguished by “surcharge”, meaning misuse that overburdens the servient estate.
Covenant
Creation: Writing signed by grantor. (NOTE: Recording deed is equivelent to signing/acceptance)
Burden of promise will run to successor of burdened lot if (WITHN):
- W: Writing
- I: Intent
- T: Touch and concerns the land
- H: Horizontal and vertical privity
- N: Notice.
Benefit of promise will run to successor of beneffitted lot if (WITV):
- W: Writing
- I: Intent
- T: Touches and concerns the land
- V: Vertical privity.
Termination by Merger
Rule: For merger to terminate an easement both parcels of land must be owned by the same party and in the same manner (e.g. cannot be a life estate and fee simple).
Abandonement
MUST have both intent and act.
- Building a wall blocking driveway.
Presciption
Difference between adverse possesion is presciption is no exlusivity is needed.
Cross-Easements
Creation: A written agreement is required by statute of frauds for the express creation of a party wall or common driveway.
- But, an irrevocable license can arise from detrimental reliance or a parol agreement.
- Also, can result from prescription or implication.
Running of Covenants: If owners agree to to be mutually responsible for maintaning the wall or driveway then the burdens and benefits of these covenants run to the successive owners of each parcel.
Termination by Estoppel
Rule: For a easement to be terminated by estoppel there must be:
- Some conduct or assertion by the owner of teh easement;
- Reasonable reliance by the owner of the servient tenement, coupled with
- Change of position.
Easement by Implication: Creation
Rule: An easement by implication arises when:
- Prior to the division of a single tract;
- An apparent and continuous use exists on the servient estate part;
- That is reasonably necessary for the enjoyment of the dominant part; and
- The court determines that the parties intended the use to continue after the division of the land.
