Servitudes + Easements/Covenants

Question 1

Why do we have servitudes? [ECON]

Answer 1

They make sense if there are positive or negative externalities between adjoining properties

Downside: Costs and benefits may change. What starts out as an efficient transaction may then become inefficient.

What do you do about it? Change in circumstances doctrine, liability rules. Especially for long-time servitudes with many parties.

Why do you need it to flow with the land?
Make investments, you don’t want to have to contract w/ an endless succession of parties (especially with monopoly power)

Question 2

What are types of Servitudes + What is the Restatement Term?

Answer 2

Restatement says all servitudes mean the same thing

a. Easements
b. Covenants enforceable at law [Real Covenants]
c. Equitable Servitudes

Rest. Says they are all servitudes, not been picked up yet, attempt to reform the law.

Question 3

How do you normally create an easement?

Answer 3

Normally in writing + placed in the real estate records [gives notice to anyone assuming the burden].

“I have a right to extract the minerals from your land”

Question 4

What is the difference between Reservation vs. Exception?

Answer 4

Reservation: Newly created real estate interest.
Exception: Pre-existing interest.

Question 5

What are the non-normal ways to create easement + Case Law

Answer 5

Creating an Easement in favor of a 3rd party ->Distinguishing Reservations vs. Exceptions.

You can reserve in favor of a 3rd party but you can not create an exception for a third party.

[Willard]

Question 6

What is an easement?

Answer 6

“You have the right to dig on my land for gold”

Question 7

License

Answer 7

You have a right to come on my land today to fix my plumbing problems

Question 8

What is the difference between License and Easement?

Answer 8

License
(1) does not require writing,
(2) more informal, and
(3) normally revocable [with exceptions; See Mund]

Question 9

When are licenses not recovable?

Answer 9

When there is substantial reliance on the licenses then you have created an easement by estoppel.

Someone travels spending thousands of dollars to come and then you decide you don’t want them after all. Not recovable.

MUND CASE

Question 10

Can you create an implied Easement?

Answer 10

Yes

(1) Situation where you have a unitary owner who makes use of part of his/her land for the benefit of another part. Sewage Case: Van Sandt v. Royster

(2) Separate Sales Create Dominant + Servient Parcels

Question 11

Does the owner of the dominant parcel have an implied right to make customary use of the servient parcel?

Answer 11

Yes, if there is a necessity. [Typically reasonable]

If it were just a modest convenience, we might require an express easement.

Question 12

Is there something called an easement by necessity?

Answer 12

Landlocked parcel, can’t reach the public roads, didn’t come from common owner who sold them separately.

Some courts say yes, there is a right created by the necessity.

If its strict necessity and it dies with the lack of necessity.

Question 13

Is there private eminent domain?

Answer 13

Some states have private eminent domain statutes.

Question 14

Can an Easement be expanded?

Answer 14

If I really need a right of way across public land then eminent domain is a solution allowing for fair market value compensation for land locked parcel.

Question 15

Easements by prescription

Answer 15

Adverse possession doctrine for easements.

Building ownership rights in the easement.

If I make a long-standing use of an easement for a long time then I will have a right to do that essentially. Buying an easement not a land.

Question 16

Are easements by prescription the same doctrine as AP for title?

Answer 16

One key difference: Doesn’t require exclusivity.

Consent destroys prescription just like AP.

Question 17

What is the distinction between easement appurtenant and easement in gross?

Answer 17

Whether you can sell a right to make use of the dominant parcel for a neighboring property or to a 3rd party.

Intent also tells us if its appurtenant or in-gross

Question 18

What is easement appurtenant?

Answer 18

Right automatically flows through with the land and only with the land. If you sell the dominant property it keeps the benefit.

Question 19

Is an easement in gross assignable?

Answer 19

Can be assignable if the easement says so or if assignability is implied. (Commercial are presumptively implied)

Question 20

If the easement in gross is assignable what restrictions can we put on this?

Answer 20

Divisibility. Some courts say that it can’t be divided because of tragedy of commons type concerns, if you have more people able to deplete the resource it leads to inefficiency & negative externalities

(Ex: Taking right of 1 company to use lake and splitting between 2 = NOT okay )

Question 21

Is Easement in gross divisible?

Answer 21

Case we had said no,

Rest + Many other cases say yes.
Can’t unreasonably burden the servient estate.

Question 22

What is the scope of an easement of appurtenant? Can it be used to benefit other parcels you own?

Answer 22

No, it is for the benefit of a specific parcel. An easement appurtenant to an estate may not be extended to other adjoining estates.

Brown v. Voss Case : Person bought two lots and wanted to build dream house on combined lot.
Court in VOSS: Can’t use easement to drag dirt across the land, but we will enforce that with a liability rule. [RARE EXCEPTION]

Question 23

Can Easement be expanded in use?

Answer 23

Restatement: Normal development is ok, reasonable use.

Question 24

Can the owner of a servient estate unilaterally change location of a right of way?

Answer 24

Rest. = Yes
Most Cases = No

Question 25

How can you terminate an easement?

Answer 25

Abandonment, Estoppel, Release

Question 26

What are examples of abandoning an easement? What happens when you abandon?

Answer 26

Brandt Case.

Land goes back to the owner of the servient estate [homesteader].

Under common-law principles, if a party abandons a right-of-way easement, the interest in the land reverts to the party that owns the land underlying the right-of-way.

Question 27

How do you terminate an easement by estoppel?

Answer 27

I make it look like I will not enforce my rights and you rely on that.

Question 28

How do you terminate an easement by release?

Answer 28

Indicate I don’t intend to assert my right anymore.

Question 29

Is there a change of circumstances in Easements?

Answer 29

No change of circumstances doctrine in Easements.

Question 30

What are negative easements?

Answer 30

Right of the owner of the dominant estate to prevent some use by the servient estate owner. Covenants have now substituted.

Question 31

What are conservation easements?

Answer 31

New concept. Donate land to a charity w/ restrictions on development for the benefit of the animals and so on.

You obtain a tax deduction for the value of the land without the restriction. Subsidizing people to turn their land into open space.

Question 32

What is required for a real covenant?

Answer 32

Must be in writing [b/c Considered a land interest under SOF] + provide notice.

Question 33

What types of real covenants are there?

Answer 33

Negative and positive. Not limited as to negative types.

Question 34

Horizontal Privity

Answer 34

Covenant has to be attached to the transfer of an estate between the original parties. Need horizontal privity for the burden to flow.

Don’t have to worry about the original parties, but the subsequent parties require horizontal privity in the original agreement. (We want to bind the subsequent party to that restriction. If there was a lack of horizontal privity, then you can’t bind the successor.)

Question 35

Vertical Privity

Answer 35

Burden flows w/estate. Only transfers if you transfer the entire estate. Requires subsequent parties to receive notice.

Important on the burden side, not really on the benefits side.

Must touch + concern the land.

Question 36

Elements of Real Covenants?

Answer 36

1. Intent to Benefit/Burden, Successors to Land.
2. Touch + Concern Land
   a. Does a duty to pay money count as touching and concerning land. Case law is split. Money is there to maintain the property.
   b. Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank
3. Writing (St. of Frauds)
   a. Implication or Prescription is an exception
4. Notice (actual, constructive, inquiry)
   a. Required on the burden side, not as important on the benefits side
5. Privity of Estate [not required for eq. servitude]
   a. Court cares about vertical privity on the benefits side in the case.
   b. The association can be treated as an agent for the owners.
   c. Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank
6. Appropriate Remedy (damages = real vs. injury = eq. )

Question 37

What are equitable servitudes?

Answer 37

Same elements in general as real covenants, except there is no privity requirement [horizontal or vertical].

Remedy is injunction rather than damages [Real covenants].

Question 38

What does the restatement say on Covenants and Equitable Servitudes?

Answer 38

3rd. Rest. says no distinction between covenants and equitable servitudes.

Courts can apply injunction or damages.

Eliminate Touch + Concern. Eliminate Privity.
Exception for privity:
Rest. Worries about imposing affirmative covenants on people who buy less than the full property interest.

Affirmative covenants must not be unreasonable in the circumstances. Maybe not required to take on affirmative obligations if they are unreasonable.

Question 39

How do you create a covenant in a standard way [Real and Equitable]?

Answer 39

Right way to do it: In writing + placed in the real estate records, clearly indicate an intent to bind successors.

Question 40

Can a covenant be implied?

Answer 40

Sandborn Case where neighboring properties were SFH and I want to build a gas station. My deed did not contain the restriction.

Court said no, we will imply an easement from the general subdivision plan.

Question 41

Can covenants be knocked down because they are contrary to public policy?

Answer 41

Racial covenants are void even if not unconstitutional [Shelley v. Kramer]

Trying to permanently bind the state to make some statement [Robert E. Lee/Taylor Case]

Question 42

Termination of Covenants

Answer 42

Change in Circumstances.

Case law is strict [River Heights]

CA statute says if covenant doesn’t make good sense anymore then we can get rid of it.

Middle ground: Enforce the covenant w/ a liability rule rather than injunction. If you have a large number of parcels covered by the same covenant it becomes difficult to bargain around it.

Other ways:

Abandonment + Acquiescence

Question 43

What are common interest communities?

Answer 43

Condo, CO-Op, Gated Home Communities/SFH Communities

Question 44

Where are the rules in these common interest communities? Case law?

Answer 44

All usually have CCnR’s which provide initial rules and then creation of an association with power to change the rules.

Lots of judicial deference in general to association decisions + initial rules.
Tough to get the courts to reverse. Nahrstedt.

Question 45

What is a Co-Op?

Answer 45

Co-ops: Corporation owns the building and you own shares in the corporation. Personal liability for the association’s loans. Co-ops have a reputation of being snobby as to who can be a member. They need rich people to share the responsibility, still have to follow race discrimination statutes. Snobby in an economic sense.

Question 46

What is the California Statute on Pets?

Answer 46

You must allow at least 1 pet. A pet is a domesticated bird, cat, dog, aquatic animal kept in an aquarium, or anything agreed to by the homeowner and the homeowner’s association.

Question 47

What is the Changed Condition Doctrine say?

Answer 47

A restrictive covenant can be nullified by changed conditions only when the changes are so radical as to destroy the essential objectives and purposes of the covenant. River heights v. Batten. Requires quite a demonstration to show too obsolete to enforce. NOT AVAILABLE FOR EASEMENTS under Traditional Common Law.

Question 48

How do you terminate a covenant?

Answer 48

1. Merger/Unity of ownership between benefitted and burdened land.
2. Formal release [release by the owner of the dominant estate, not intending to assert this right anymore]
3. Acquiescence: multiple people have built commercial things nobody has sued, now you want to build gas station, court could say it has disappeared by acquiescence. Could have enforced it multiple times against multiple people and did not.
4. Abandonment: If you don’t assert your right for a long period of time then abandonment
5. Unclean Hands/Laches: P is tainted in a way they can’t demand D to comply. If I’m an owner and I build a gas station and then I try to stop you from building a gas station then unclean hands. Has to be related to the specific transaction in question.
6. Laches: You have delayed unreasonably in asserting your rights, other person has relied in a substantial way. Court might apply the doctrine of laches. You could have complained about this a lot earlier, it may be too late now.
7. Estoppel: Mislead someone into believing they could do something. You bring an injunction the court might say that you are estopped.