Servitudes and Easements

Question 1

Servitudes

Answer 1

Servitudes encompass legal rights and obligations that are attached and burden the land.

The recognized categories of servitudes include

• Easements
• Profits
• Licenses
• Real Covenants

Question 2

Easement

Answer 2

the right to use the property of another for a specific purpose

Most common is a “right of way”

Easements are an interest in land

Question 3

Profits

Answer 3

• A profit a prendre is a “super easement” in the sense that it couples the right to enter the property of another with the right to remove something, such as minerals, timber, or game
• Often, a landowner will use a lease rather than a profit to give someone the right to extract minerals or timber from her property.
• Interest in land
• Can be appurtenant or in gross
  
  • If appurtenant, it cannot be transferred without also conveying the land to which it is attached
  • If in gross, many courts say it is assignable and inheritable, while some courts would focus on the grantor’s intent

Question 4

Licenses

Answer 4

• A license is not an interest in land, but rather is a transient, personal privilege
• Constitutes permission to enter the property of another for a particular purpose
• Usually held to be revocable and unassignable (without consent) unless the parties agree otherwise
• Hunting or fishing is generally given in the form of a license
• Not an interest in land
• Because not an interest in land, it doesn’t need to adhere to the Statute of Frauds, and can be granted orally
• If you purchased a license, the terms of the license will be established by the purchase agreement

Question 5

Real Covenants and Equitable Servitudes

Answer 5

• Easement is a grant of a property interest, giving the holder the right to do something on another’s land, or prevent the other landowner from doing something
• Real covenant is a promise respecting land
  
  • Example: may grant an easement to Bart, allowing him a right of way, and when Bart promises in return to maintain the right of way, this would be a covenant

Question 6

Equitable Servitude

Answer 6

courts sometimes hold that a real covenant cannot be enforced at law by or against a subsequent owner of the property. Nevertheless the court may be willing to use its authority in equity to hold the landowner to the covenant