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Real Property > SERVITUDES > Flashcards

SERVITUDES Flashcards

1
Q

Define Easements.

A

the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenament

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2
Q

What kin of easements are there?

A

Affirmative and negative easements

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3
Q

What are affirmative easements?

A

The right to do something on servient land.

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4
Q

What are negative easements?

A

The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in only four categories

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5
Q

What are the four recognized categories of negative easements?

A 
LASS
Light
Air
Support
Stream water form an artificial flow
(in a minority of jurisdictions there is a negative easement for scenic view)
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6
Q

How are negative easements created?

A

NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY, BY WRITING SIGNED BY THE GRANTOR. THERE IS NO NATURAL OR AUTOMATIC RIGHT TO A NEGATIVE EASEMENT.

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7
Q

What is an easement in appurtenant?

A

The easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property.

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8
Q

How will you know when you’ve got an easement appurtenant?

A

It takes two baby

It takes two parcels of land. A dominant tenement gets the benefit and a servient tenement bears the burden

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9
Q

A grants B a right of way across A’s land, so that B can more easily reach his land.
What kind of easement is this?
Who are the dominant and servient tenements in this example?

A

An easement appurtenant

B’s land is benefited by the easement. It is the dominant tenement. A’s land is serving B’s easement. It is the servient tenement.

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10
Q

What is an easement in gross?

A

The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, servient land is burdened. However, there is no benefited or dominant tenement.

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11
Q

what are some common examples of an easement in gross?

A

The right to place a billboard on another’s lot. the right to fish or swim in another’s pond. the right to lay power lines on another’s land.

Servient land is burdened, but there is not dominant land.

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12
Q

How does an easement appurtenant transfer?

A

The appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.

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13
Q

A has an easement entitling her to cut across B’s lawn to get more easily to her land.
What kind of easement is this?
Who’s land is dominant? Who’s land is servient?

A

This is an easement appurtenant.

A’s land is dominant.
B’s land is servient.

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14
Q

A has an easement entitling her to cut across B’s lawn to get more easily to her land. Now A sells her parcel to Mr. X, with no mention of the easement. Does Mr. X enjoy the easement?

A

Yes, it passes automatically with the dominant land.

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15
Q

The easement appurtenant also passes automatically with the servient estate, unless the new owner _______?

A

is a bonafide purchaser without notice.

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16
Q

When is an easement in gross transferable?

A

An easement in gross is not transferable unless it is for commercial purposes.

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17
Q

A has an easement entitling her to swim in B’s lake.

What kind of easement is this?

A

An easement in gross

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18
Q

A has an easement entitling her to swim in B’s lake.

Is this easement transferable?

A

No, it is personal to its holder

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19
Q

Starkist has an easement to use B’s lake to fish for bait for Starkist’s tuna company.
What kind of easement is this?

A

An easment in gross.

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20
Q

Starkist has an easement to use B’s lake to fish for bait for Starkist’s tuna company.
Is this easement transferable?

A

Yes, because now it is commercial.

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21
Q

What are the four ways to create an affirmative easement?

A 
PING
Prescription
Implication
Necessity
Grant
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22
Q

What do you need for an easement by grant?

A

An easement to endure for more than one year that must be in writing which complies with the formal elements of a deed.

This is because of the statute of frauds

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23
Q

What is the writing to evidence the easement is called?

A

deed of easement

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24
Q

What two elements for an easement by implication?

A

1) the previous use of the lease was apparent and

2) the parties expected it would continue because it is reasonably necessary to the dominant land’s use and enjoyment.

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25
Q

A owns two lots. Lot 1 is hooked up to a sewer drain located on lot 2. A sells lot 1 to B, with no mention of B’s right to continue to use the drain on A’s remaining lot 2. The court may nonetheless imply an easement on B’s behalf if what?

A

1) the previous use of the lease was apparent and

2) the parties expected it would continue because it is reasonably necessary to the dominant land’s use and enjoyment.

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26
Q

What is an easement by necessity?

A

An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out (in a land locked setting), except over part of his remaining land.

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27
Q

What is an easement by prescription?

A

By prescription: An easement may be acquired by satisfying the elements of adverse possession:
COAH
Continuous use for the statutory period
Open and notorious use
Actual use
Hostile use, without the servient owner’s consent

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28
Q

What usually defeats the acquisition of an easement by prescription?

A

Permission, because acquisition of an easement by prescription requires that the use be hostile.

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29
Q

What determines the scope of the easement?

A

the terms that created it.

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30
Q

A grants B an easement to use A’s private road to get to and from B’s parcel, Blackacre
What does B have?
A’s parcel is considered what?

A

B has an easement appurtenant.

A’s parcel is considered servient.

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31
Q

A grants B an easement to use A’s private road to get to and from B’s parcel, Blackacre. Subsequently, B purchases the adjacent Greenacre, with its small marina. May B unilaterally expand the use of the easement to benefit Greenacre?

A

No, unilateral expansion is not allowed.

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32
Q

What are the ways to terminate an easement?

A 
END CRAMP
Estoppel
Necessity
Destruction
Condemnation
Release
Abandonment
Merger
Prescription
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33
Q

What is the termination of an easement by estoppel?

A

Here, the servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced

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34
Q

A tells B that A will no longer be using her right of way across B’s parcel. In reasonable reliance, B builds a swimming pool on B’s parcel, thereby depriving A of the easement. In equity. Can A then enforce her easement?

A

No, A is estopped form enforcing it.

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35
Q

What is the termination of an easement by necessity?

A

Easements created by necessity expire as soon as the need ends. However, if the easement, attributable to necessity, was nonetheless created by express grant it won’t end when the need ends.

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36
Q

O conveys a portion of his ten-acre tract to A, with no means of access out except over a portion of O’s remaining land. The parties reduce their understanding to express writing. Thereafter, the city builds a public roadway affording A access out.
Can O end A’s easement?

A

No, the easement persists because it was created by express grant which won’t end when the need ends.

37
Q

What is the termination of an easement by destruction?

A

Destruction of the servient land, other than through the willful conduct of the servient owner will end the easement.

38
Q

What is the termination of an easement by condemnation?

A

Condemnation of the servient estate by eminent domain will end the easement.

39
Q

What is the termination of an easement by release?

A

A written release, given by the easement holder to the servient holder will end the easement.

40
Q

What is the termination of an easement by abandonment?

A

The easement holder must demonstrate by physical action the intent never to use the easement again.

41
Q

What kind of action is not enough to end an easement by abandonment?

A

Mere words are not enough to end an easement by abandonment, need physical action.

42
Q

A has a right of way across B’s parcel. A erects a structure on A’s parcel that precludes her from ever again reaching B’s parcel. What is the effect of this action?

A

This is the sort of action to signify abandonment.

43
Q

What is the termination of an easement by merger?

A

The easement is extinguished when title to easement and tittle to servient land become vested in the same person.

44
Q

What is the termination of an easement by merger also known as?

A

termination of an easement by unity of ownership

45
Q

A has a right of way across B’s parcel, to enable A to better reach her parcel.
A’s land is what? A is the holder of what?
B’s land is what?

A

A’s land is dominant and holds an easement appurtinent

B’s land is servient

46
Q

A has a right of way across B’s parcel, to enable A to better reach her parcel. Later, A buys B’s parcel. What is the result?

A

The easement ends.

47
Q

What happens if there is complete unity of title is achieved, and easement is extinguished, but later there is another separation of tittle?

A

The easement is not revivived

48
Q

What is the termination of an easement by prescription?

A 
The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. 
COAH
Continuous interference'
Open and notorious
Actual
Hostile to the easement holder
49
Q

A has an easement of right of way across B’s parcel. B erects a chain link fence on B’s parcel, thereby precluding A from reaching it. Over time, B may succeed in extinguishing the easement through what?

A

Prescription

50
Q

What is a license?

A

A mere privilege to enter another’s land for some defined purpose.

51
Q

What are licences not subject to?

A

The statute of frauds. You do not need a writing to create a license.

52
Q

Are licenses freely revocable?

A

Yes, at the will of the licensor.

53
Q

What will prevent the license form being freely revocable by the licensor?

A

If estopple applies it will bar revocation.

54
Q

What do tickets create?

A

A freely revocable license.

55
Q

Neighbor A, talking by the fence with neighbor B, says, “B, you can have that right of way across my land.” What is this?

A

it is a freely revocable licence.

56
Q

What do oral easements create? Why?

A

Oral easements create freely revocable licenses because they violate the statute of frauds and licenses don’t.

57
Q

When will estoppel apply to bar free revocation of a license?

A

When the licensee has invested substantial labor or money or both in reasonable reliance on the license’s continuation.

58
Q

What is a profit?

A

The profit entitles its holder to enter the servient land and take from it the soil or some substance of the soil. Such as minerals, timber, oil.

59
Q

What rules do you apply to a profit?

A

All the rules of easements to profits.

60
Q

Define the covenant.

A

The covenant is a promise to do or not do something related to land.

61
Q

Why is the covenant unlike an easement?

A

It is UNLIKE the easement because it is not the grant of a property interest, but rather a contract or promise regarding land.

62
Q

What is a restrictive covenant?

A

he restrictive covenant is a promise to refrain from doing something related to land.

63
Q

“I promise not to build for commercial purposes.” This is an example of what?

A

A restrictive covenant

64
Q

What is an affirmative covenant?

A

The affirmative covenant is a promise to do something related to land.

65
Q

I promise to paint our common fence which pertains to blackacre.
This is an example of what?

A

An affirmative covenant.

66
Q

How do you know whether to construe the given promise as a covenant or as an equitable servitude?

A

On the basis of the remedy the plaintiff seeks.

If P seeks money damages construe as a covenant. (legal device, legal remedy is money)
If P seeks an injunction construe as an equitable servitude. (only enforceable in equity for relief)

67
Q

In covenant parlance, one tract is burdened by the promise and another is _______?

A

benefited

68
Q

What are the elements necessary for the covenant’s burden to run from the covenant promisor to the promisee? (when does the burden of A’s promise to B run from A to A-1)

A 
WITH N
Writing
Intent
Touch and concern
Horizontal and vertical privity are both needed for the burden to run
Notice. A-1 has notice.
69
Q

What does the element of writing mean for the covenant’s burden to run?

A

The original promise between the parties was in writing.

70
Q

What does the element of Intent mean for the covenant’s burden to run?

A

The original parties intended that the covenant would run. (courts are generous in finding the requisite intent)

71
Q

What does the element of touch and concern mean for the covenant’s burden to run?

A

The promise must affect the parties legal relations as landowners and not simply as members of the community at large.

72
Q

What does the element of Horizontal privity mean for the covenant’s burden to run?

A

Horizontal privity refers to the nexus between the original parties.
It requires they be in succession of estate meaning that they were in a grantor-grantee or landlord-tenant or mortgagor-mortgagee relationship.

73
Q

Vertical Privity refers to the nexus between?

A

An original party and their successor.

74
Q

What does vertical privity require?

A

It simply requires some non-hostile nexus, such as: contract, devise (ex: through a will), decent (through intestacy).

75
Q

What is the only time that vertical privity will be absent?

A

When a successor acquired her interest though: ADVERSE POSSESSION.

76
Q

When does the benefit of the covenant promisor’s promise to the covenant’s promisee run from the successor to the promisee?
(When does the benefit of A’s promise to B run from B to B-1?)

A

W I T V
Writing- The original promise form A to B was in writing.
Intent - The original parties A and B intneded that the benefit would run
Touch and Concern- The promise affects the parties as land owners
Vertical privity. (horizontal privity is not required for the benefit to run)- A non-hostile nexus between promissee and their succesor. (B and B-1).

77
Q

Neighbor A promises neighbor B that A will not build for commercial purposes on A’s property.
Who’s parcel is burdened, and who’s parcel is benefited?

A

A’s parcel is burdened by the promise. B’s parcel is benefited.

78
Q

Neighbor A promises neighbor B that A will not build for commercial purposes on A’s property. Later, A sells her burdened parcel to A-1. B sells his benefited parcel to B-1. Now, A-1 has commenced manufacture of a steak sauce plant on the premises. B-1 wishes to proceed against A-1 for money damages. Will B-1 succeed?

A

It depends on whether the facts support the conclusion that the burden and benefit run.
From A to A-1 you need WITH N
From B to B-1 you need WIT V

79
Q

Define an equitable servitude

A

The equitable servitude is a promise that equity will enforce against successors.

80
Q

What kind of relief is an equitable servitude accompanied by?

A

It is accompanied by injunction relief.

81
Q

What elements do you need to create an equitable servitude that will bind successors?

A

W I T N E S
Writing- generally the original promise ws in writing
Intent- the parties intended that the promise will bind successors.
Touch and concern- the promise affects the parties as land owners
Notice- The successors of the burdened land had notice of the the promise

82
Q

What is not needed to bind successors of an equitable servitude?

A

Privity.

83
Q

A subdivides her land into 50 lots. She sells lots 1 through 45 through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by deed containing no such covenant. B now seeks to build a convenience store on his lot. Can he be enjoined from doing so?

A

Yes, if the two elements of the general or common scheme doctrine apply. Under the common scheme doctrine, the court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant.

84
Q

What are the two elements of the common scheme doctrine?

A

When the sales began, the subdivider had a general scheme that included defendants lot.
and the defendant lot holder had notice of the prior deeds

85
Q

What are the three forms potentially imputed the the defendant in a equitable servitude action (or reciprocal negative servitude)?

A

AIR
Actual notice meaning defendant had literal knowledge of the promises in the prior deeds.

Inquiry notice meaning that when the neighborhood conforms to the common restriction that the lay of the land gives notice.

Record notice, meaning the form of notice sometimes imputed to buyers on the basis of public documents.

86
Q

What is the split with regard to notice among courts? Why is one view better?

A

Some take the view that a subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor. The better view, taken by other courts, is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor.
It is the better view because it’s less burdensome to D’s title searcher.

87
Q

What is an equitable defense to an equitable servitude?

A

Changed conditions The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be.

88
Q

What is never good enough for the changed conditions defense to apply to an equitable servitude?

A

Mere pockets of limited change

Real Property (13 decks)

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