Servitudes: Easements / Covenants / Licenses

Question 1

An easement by necessity will be implied if all of the following elements are met:

Answer 1

1) Necessity – the dominant (benefited) estate is virtually useless without an easement across the servient (burdened) estate
2) Common ownership – the dominant and servient estates were under common ownership in the past (i.e., they were once a single tract of land)
3) Severance – the necessity arose when the land was severed and the dominant and servient estates were created

Question 2

Licenses

Answer 2

Definition

• A license is a nonpossessory right to enter and use someone else’s land for a specific purpose.
• A license is freely revocable unless the licensee detrimentally relied on the license (e.g., paid money to use or maintain the license) OR the license was coupled with an interest in the property (e.g., a remainderman’s license to enter and inspect property).
• Revocable privilege to enter & use another’s land for specific purpose

Creation

• Orally, in writing, or by another act demonstrating licensor’s intent to create license

Termination

• At any time upon revocation by licensor
• Automatically upon (1) death of licensor or licensee or (2) conveyance of licensed property

Question 3

Fixture v. Chattel (visual)

Answer 3

Question 4

A fixture is a chattel that is:

Answer 4

(1) attached to real property in such a manner that it is treated as part of the realty

AND

(2) used for some larger component or function of the land (e.g., a wall separating adjoining properties).

Note: Fixtures are considered an integral part of the land to which they are attached. Consequently, a fixture automatically transfers with the land unless the conveying instrument (e.g., deed) provides otherwise.

Question 5

Fixtures

Answer 5

Once-movable chattel that is annexed (i.e., affixed) to real property such that it becomes part of the realty

• Often arises with leaseholds, but applies to all real property estates
• Fixtures pass with ownership of the land
  
  • Exception — a life tenant’s representative may remove annexed chattel within a reasonable time after life tenant’s death.

Determining whether chattel has become a fixture:

• Intent controls — annexor’s intent is usually determinative
• Fixture almost always arises where annexor affixes their own chattel to their own property
• Chattel integrated into a structure (e.g., heating pipes, bricks built into a wall) almost always becomes a fixture

Landlord-tenant:

• Agreement between landlord and tenant is controlling, if it exists
• Tenant installation — tenant may remove chattel she installed if:

1) Removal occurs before the lease expires; and
2) Removal does not cause substantial harm to the property
* If tenant impermissibly removes fixtures she commits voluntary waste

Question 6

What are some factors used to determine whether chattel has become a fixture?

Answer 6

Determining whether chattel has become a fixture:

1) Intent controls — annexor’s intent is usually determinative
2) Fixture almost always arises where annexor affixes their own chattel to their own property
3) Chattel integrated into a structure (e.g., heating pipes, bricks built into a wall) almost always becomes a fixture

Question 7

When does private nuisance liability arise?

Answer 7

Private-nuisance liability arises when a defendant’s interference with the plaintiff’s use and enjoyment of his/her property is both:

1) substantial (offensive, annoying, or intolerable to normal person in community)

AND

2) unreasonable (severity of plaintiff’s harm outweighs utility of defendant’s conduct).

Question 8

A covenant sought to be enforced by an injunction is called an ____________?

Answer 8

A covenant sought to be enforced by an injunction is called an equitable servitude.

To be enforceable by or against the promising parties’ successors in interest, the servitude must touch and concern the land—i.e., relate to the use, enjoyment, or occupation of the dominant and servient estates.

Question 9

What does “touch and concern” mean?

Answer 9

Touches and concerns the land — covenant must affect parties’ legal relations as landowners (a very low standard)

• i.e., relate to the use, enjoyment, or occupation of the dominant and servientestates
• i.e., Homeowner association fees satisfy this requirement

Question 10

Privity Requirements for Real Covenants

Answer 10

Question 11

Real Covenant

Answer 11

A real covenant is an express promise to do (affirmative) or not do (negative/restrictive) something on land that is enforceable by an action for money damages.

The promising parties are bound to the covenant under contract law. But successors in interest are bound only if the covenant runs with the land. This occurs when the following elements are met:

1) Writing – covenant is in a writing that satisfies the statute of frauds (eg, deed to 40-acre tract)

2) Intent to run – promising parties intended for the covenant to run to their successors in interest (eg, deed says “running with the land,” “binding to heirs and assigns”)

3) Touch and concern – covenant relates to the use, enjoyment, or occupation of the benefited and burdened lands (eg, limiting use of 40-acre tract to benefit five-acre tract)

4) Horizontal privity – promising parties simultaneously transferred the land and created the covenant (eg, covenant created when 40-acre tract was deeded to developer)

5) Vertical privity – successor of the benefited estate has a possessory interest (not applicable here since the man is a promising party) and successor of the burdened estate has a promising party’s entire estate or ownership interest (eg, doctor has same ownership interest that developer had)

6) Notice – person to be bound had notice of the covenant (eg, doctor had record notice of promptly recorded deed containing the covenant)

Question 12

When will a real covenant run to successor in interest?

Answer 12

A real covenant will run to successors in interest if the following elements are met:

(1) writing,
(2) intent to run,
(3) touch and concern,
(4) horizontal privity,
(5) vertical privity, and
(6) notice.

Question 13

Licenses

Answer 13

Definition: Revocable privilege to enter & use another’s land for specific purpose

Creation: Orally, in writing, or by another act demonstrating licensor’s intent to create license

Termination:

• At any time upon revocation by licensor
• Automatically upon (1) death of licensor or licensee OR (2) conveyance of licensed property

Question 14

Distinction b/w Easements (visual)

Answer 14

Question 15

Easement by Estoppel

Answer 15

An easement by estoppel arises from good-faith, reasonable, detrimental reliance on the servient-estate owner’s permission to make a limited use of his/her land.*

*An easement by estoppel can also be characterized as an irrevocable license.

Question 16

Can a covenant be abandoned? If so, how?

Answer 16

A covenant can be terminated in the same manner as an easement, including by abandonment.

Abandonment occurs when an affirmative act—something more than neglect or nonuse—shows a clear intent to relinquish the covenant.

Question 17

Negative Easements

Common law vs. Modern View

Answer 17

Common Law:

• Light
• Air
• Support
• Water access

Modern View:

• View
• Solar access
• Conservation

Question 18

When is the only time landowners are restricted from blocking another’s access to natural light?

Answer 18

Landowners can only restrict another’s blockage of light if they are protected by statute or enter into an agreement with the neighboring landowner to create a negative easement.

Absent a negative easement or statute, a landowner has no legal right to prevent neighbors from blocking his/her land from access to natural light.

Question 19

How are equitable servitude created? *(double check if this is every way)

Answer 19

A covenant is a promise to do or not do something on the land. When an injunction is sought to enforce a covenant (as seen here), it is called an “equitable servitude.”

1) An equitable servitude can be expressly created in a written agreement.
2) An equitable servitude can also be implied from a common scheme* if three elements are met:
1) Intent to create common scheme – the owner intended to impose a servitude on all lots in the subdivision
2) Restrictive servitude – the intended servitude is a promise not to do something on land
3) Notice – the person to be bound by the servitude had actual, record, or inquiry notice of the servitude
* *But it cannot be enforced against lots sold before the common scheme arose.*
* **Implied equitable servitudes typically arise in planned subdivisions and are also referred to as implied reciprocal servitudes, mutual rights of enforcement, and reciprocal negative servitudes.

Question 20

When do implied equitable servitudes typically arise?

Answer 20

Implied equitable servitudes typically arise in planned subdivisions and are also referred to as implied reciprocal servitudes, mutual rights of enforcement, and reciprocal negative servitudes.

Question 21

Elements of real covenants & equitable servitudes

Answer 21

Question 22

What three things are required for an equitable servitude to be implied from a common scheme?

Answer 22

For an equitable servitude to be implied from a common scheme:

(1) the owner must have intended to impose a servitude on all lots in the subdivision,
(2) the servitude must be restrictive, AND
(3) the person to be bound must have had notice of the servitude.

Question 23

What is an easement by prescription and how is one acquired?

Answer 23

An easement by prescription is a presumptive non-possessory right to use another’s land for a limited purpose (eg, to use another’s driveway, to install utility lines).

An easement by prescription is acquired by use that is:

Open and notorious – apparent or visible to a reasonable owner

Continuous – uninterrupted for the statutory period

Actual – physical presence and use of the land

Non-permissive – hostile and adverse to the original owner (ie, without the owner’s permission)

Question 24

Permissible use of easement

Answer 24

1) Express easement

• Uses intended by parties OR reasonably necessary to use/enjoy easement if intent is unknown
• Expansion of use permitted

2) Easement by prior use

• Limited to scope of prior use
• No expansion of use

3) Easement by necessity

• Normal uses needed for dominant estate (eg, ingress/egress, utility lines)
• Expansion of use permitted

4) Prescriptive easement

• Limited to scope of adverse use during prescriptive period
• No expansion of use

*An easement also anticipates reasonable and natural development of the easement holder’s land (i.e., the dominant estate). Therefore, the easement holder may increase the manner, frequency, and intensity of the easement’s use—so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.

Question 25

What convenants can an assignee-landlord enforce? How?

Answer 25

Unless the lease states otherwise, a landlord may assign his/her rights under the lease to a third party (i.e., assignee-landlord) without the tenant’s consent.

The assignee-landlord can then enforce covenants (i.e., promises) in the lease that run with the land.* A covenant runs with the land when:

• the original parties intended to bind successors in interest (e.g., assignee-landlord)
• the covenant touches and concerns the land—i.e., affects the land’s use or value and
• the assignee-landlord is in privity of estate with the tenant—i.e., a mutual or successive relationship in the same property interest.

Even if the intent to bind successors in interest is not explicitly stated in the lease, it is generally presumed when the covenant touches and concerns the land.

*When a lease covenant does not run with the land, the original landlord retains the right to enforce it.

Question 26

Easement Appurtenant

Answer 26

An easement appurtenant benefits one parcel of land (dominant estate) by allowing the easement holder to use or control another parcel of land (servient estate) in a limited way.

This type of easement is attached to the land, so subsequent owners of both the dominant and servient estates are bound by the easement.

Question 27

In a notice jx, is an easement that is not recorded against the servient estate enforceable agaainst a BFP, that is, a purchaser without notice of the easement?

Answer 27

NO.

An easement not recorded against the servient estate is not enforceable against a bona fide purchaser, that is, a purchaser without notice of the easement, because the statute is a notice statute.

Question 28

Easements

After-acquired Property

Answer 28

Example: MBE Practice Exam #1

The individual granted the corporation an easement appurtenant because the easement was granted to the corporation as owner of the adjacent property.

As such, the easement cannot be used for the benefit of property other than the dominant estate. Here, the corporation intended to use the road for the benefit of not only property owned at the time of the granting of the easement (i.e., the dominant estate), but also property subsequently acquired.

While a court may award damages instead of issuing an injunction when there is not an increased burden on the servient estate, in this case there would be an increase in the traffic on the road by the expansion of the factory onto the property acquired from a third party. Thus, an injunction is warranted.