Servitudes (Easements & Covenants) Flashcards
Servitude
right or obligations that “runs with the land” (transfers estates)
May run with burdened and/or benefited estate
Dominant Estate
benefited by easement
Servient Estate
burdened by easement
Benefit
ability to enforce
Burden
subject being bound to it
Statue of frauds
writing & signed by grantor
Easement
right to use another’s land for a limited purpose
How to determine type of easement?
grantor intent
If there is doubt over whether easement is in-gross or appurtenant, assume appurtenant
Appurtenant easement
servient land (& its owner) benefits dominant land (& its owner); runs with the land
Right of way
right to use another’s land to enter and exit
In-gross
one land (& its owner) benefits a particular person or entity (not land)
- If commercial, presumption that benefitted can transfer
- If personal, presumption that benefitted cannot transfer
Profit
right to use another’s land to collect resources
Elements of Creation of a Written Agreement
- In writing & signed by grantor (original creation only)
- To run with estate, need intent to run with estate by original parties
- To run against servient estate holder, need actual, inquiry, or constructive notice at time of purchase
Four Exceptions to the Statue of Frauds
Estoppel, Prescription, Prior Use, Necessity
Estoppel
- Permission from owner to use land (express or implied)
- Foreseeable and reasonable reliance on continuation of permission
- Substantially change position in reliance on continuation
- Substantial injustice to revoke
Prescrption
- Continuous use for SOL
- Hostile/adverse – failed grant or no permission
- Actual use (good/bad faith)
- Open and notorious
Implied by Prior Use
- Severance of common estate (parcels once owned by common grantor)
- Easement used before severance
- Use apparent and continuous before severance
- Use reasonably necessary for enjoyment of dominant estate
Necessity
- Severance of common estate
- Dominant estate became landlocked at time of severance
Modifying/terminating easement
- Own terms
- Merger (become one parcel)
- Abandonment indicated by conduct – more than nonuse
- AP or prescription by servient estate or 3rd party
- Frustration of purpose (no longer serves intended purpose)
Can servient move easement?
Traditionally no
Restatement: reasonable changes to permit normal use/development of servient estate AS LONG AS they do not (a) significantly lessen utility, (b) increase burden on dominant estate for use & enjoyment, (c) frustrate purpose of easements
Covenant
restriction or (obligation) concerning land use that applies to successors
Privity of Contract
relationship between original parties, must have to enforce
Differences
Real Covenant and Equitable Servitudes
Differences: is the damages that are being sought (RC: money, ES: injunction) & that ES requires notice instead of privity
Elements
Real Covenant
(1) Writing (complies with statue of frauds)
2) Intent to run with land (presumed if appurtenant
3) Privity of estate: need both
Simultaneous interest in same parcel
4) Touch & Concern: connection between covenant and land use
(4)
Servient Estate: obligation affects use and enjoyment
Dominant Estate: obligation improves enjoyment of land or increases market value
(4)
Servient Estate: obligation affects use and enjoyment
Dominant Estate: obligation improves enjoyment of land or increases market value
Equitable Servitudes
(1) Same MAJ & MIN rule
(2) Same
(3) Notice (Actual, Inquiry, Construtive)
(4) Same
Restatement 3rd
(1) Same
(2) Same
(3) Same as ES
(4) Enforcable unless unreasonable
