Servitudes: Covenants & Easements

Question 1

easements by necessity

Answer 1

1. The dominant & servient estates were formerly one parcel; and
2. At the time of severance the dominant estate became landlocked

Question 2

Negative servitudes / covenants are

Answer 2

restrictions on use of land or obligations regarding land held by one who does not own the land

Question 3

easements implied by prior use

Answer 3

• The servient & dominant parcels were once under common ownership
• The rights alleged were exercised prior to the severance of the estate
• The use was:
  1. Visible/apparent/obvious,
  2. Continuous; and
  3. Permanent
• The continuation of this use was reasonably necessary to the enjoyment of the parcel; and
• A contrary intention is neither expressed or implied

Question 4

easements in gross

Answer 4

Benefit of the servitude is held by a particular individual or entity rather than running with a parcel of land

Question 5

vertical privity

Answer 5

Relationship between successive owners

Question 6

remedy for real covenants is

Answer 6

damages

Question 7

Restatement of Property § 564

Answer 7

Covenants will not be enforced if conditions have changed so drastically inside the neighborhood restricted by the covenants that enforcement will be of no substantial benefit to the dominate estates

Question 8

green v lupo holding

Answer 8

a servient owner is entitled to impose reasonable restraints on a right of way to avoid a greater burden on the servient owner’s estate than that originally contemplated in the easement grant so long as such restraint does not unreasonably interfere with the dominant owner’s use

Question 9

express easements are created by

Answer 9

Created by an explicit agreement of the parties in writing, that
o Identifies the grantor & grantee
o Contains words with an intention to create an easement
o Describe the affected land, and
o Is signed by the grantor

Question 10

reasonableness factors test

Answer 10

1. Intent of the parties
2. Impact on considerations exchanged
3. Covenant clearly and expressly sets forth the restrictions
4. Was it in writing, recorded–actual notice?
5. Reasonable concerning area, time, or duration
6. Unreasonable restraint on trade or secures a monopoly for the covenanter
7. Whether the covenant interferes with the public interest
8. Whether “changed circumstances” now make the covenant unreasonable

Question 11

remedy for equitable servitudes is

Answer 11

injunctive relief

Question 12

easement

Answer 12

possessory right to enter/use/affirmatively do something on someone else’s land
* Are irrevocable by grantor
* Are generally transferable during life and upon death

Question 13

actual notice

Answer 13

was actually told about it or was otherwise made aware of it

Question 14

neponsit v emigrant industrial holding

Answer 14

(1) A covenant contained in a deed requiring the payment of money “touches and concerns” the land if it substantially affects the rights of the parties as landowners
(2) Privity of estate will exist in substance if not in form between property owners and an owners’ association when the association is acting as a medium through which enjoyment of a common right is preserved

Question 15

constructive notice

Answer 15

if the restriction was recorded within the registry of deeds and could be found via a reasonable search of the records prior to sale
- A reasonable purchaser is expected to search the title to find out whether the property is burdened by any land use restrictions

Question 16

case for reasonableness factors test

Answer 16

davidson v katz

Question 17

reasonable analysis under nahrstedt

Answer 17

Whether the burdens it imposes to affected properties so substantially outweigh the benefits of the restriction that it should not be enforced against any owner

Question 18

leases

Answer 18

possessory rights to use a defined space for all uses not explicitly or implicitly prohibited in the lease

Question 19

apple valley v machutta holding

Answer 19

Most courts will generally enforce an amended covenant, but may refuse to enforce it if it undermines a material right that owner reasonable relied upon

Question 20

implied reciprocal negative servitudes

Answer 20

When an owner sells a number of parcels with evidence of intent to create a common plan or scheme of development then:
(1) covenants made to the seller benefit all parcels within the plan; and
(2) all parcels within the plan are bound by the covenants

Question 21

runs with the land

Answer 21

() if it passes automatically to successive owners or occupiers of the land or interest

Question 22

relaxed vertical privity

Answer 22

allow burden and benefit to run all subsequent possessors of the land given through “orderly transfer”, includes those who only lease the property
- allows covenants to run to all those assigned possession, such as lessees

Question 23

appurtenant easement

Answer 23

• Attached to dominant land, not to any particular owner of that land
• Automatically transferred with transfer of dominant estate
• a covenant that is attached to the land

Question 24

for express easement’s burden to run it must be…

Answer 24

o Written
o Intent (intent to run with the land)
o Notice (actual, constructive, or inquiry) to the servient landowner

Question 25

instantaneous privity

Answer 25

created during the legal transfer of land

Question 26

equitable servitudes require

Answer 26

notice

Question 27

lobato v taylor holding

Answer 27

A court can imply an easement created by estoppel when the landowner permitted another party to use the land under circumstances in which it was reasonably foreseeable that the user would substantially change position believing that the permission would not be revoked, the user substantially changed position in reasonable reliance on that belief, and injustice can be avoided only by establishment of a servitude

Question 28

frech v piontkowski holding

Answer 28

An abutting landowner can acquire a prescriptive easement for recreational use of a nonnavigable, artificial body of water

Question 29

finn v williams holding

Answer 29

an easement by necessity implied with a transfer of land may go unused through subsequent transfers of the land, but still be exercised at any time by the title holder

Question 30

nahrstedt v lakeside holding

Answer 30

where a restriction is contained in the declaration and recorded, the restriction is presumed to be reasonable and will be enforced against all residents unless it is wholly arbitrary, violates fundamental public policy, or imposes a burden on the use of affected land that far outweighs any benefit

Question 31

davidson v katz holding

Answer 31

a covenant is not enforceable if it is determined to be unreasonable in light of the public’s interests

Question 32

granite properties v manns holding

Answer 32

An implied easement may arise from a grantor’s continuous and apparent preexisting use of property conveyed by the grantor, even if the easement is not absolutely necessary for the beneficial use and enjoyment of the property retained by the grantor

Question 33

licenses

Answer 33

limited rights to enter or use land that do not run with the land and are usually revocable at will by the grantor

Question 34

horizontal privity

Answer 34

Relationships between original and covenanting parties

Question 35

prescriptive easements

Answer 35

• CHANC(E/A)S
  Continuous
  Hostile or adverse
  Actual use
  Notorious and open
  Claim of right or color of title (minority)
  Exclusive or acquiescence (minority)
  Statutory period

Question 36

inquiry notice

Answer 36

if the condition would make a reasonable purchaser inquire about the existence of a covenant

Question 37

strict vertical privity

Answer 37

succeeding owner must receive the entire estate of the prior owner for burden or benefit to run to the subsequent possessor
- requires that grantor does not retain any future interest in the land

Question 38

easements by estoppel

Answer 38

Characteristics:
o Owner grants license/permission to use the land
o Reasonable & foreseeable reliance on continuation of the permission
o Changed position by the claimant (usually through significant expenditures) in reliance on continuation; and
o Finding an easement is necessary to prevent injustice

Question 39

Simultaneous/mutual privity

Answer 39

• Parties have simultaneous interest in the same parcel of land
• Parties have simultaneous interests in the same parcel of land
  i.e., lease, landlord/tenant

Question 40

real covenants require

Answer 40

privity