Servitudes - Licenses, the Profit, Covenants, and Equitable Servitudes

Question 1

What is a license?

Answer 1

A mere privilege to enter another’s land for a specific purpose.

Question 2

Does a license have to be in writing to be enforceable?

Answer 2

No - not subject to the statute of frauds.

Question 3

When can a license be revoked?

Answer 3

At any time unless estoppel applies to bar revocation (i.e. licensee put in substantial $ and/or labor and reliance was reasonable).

Question 4

Is a theater or movie ticket a license?

Answer 4

Yes - it gives the holder the right to enter the premises to watch a show. It is freely revocable.

Question 5

What happens when an easement is granted orally?

Answer 5

It is actually just a license.

Question 6

Define “the profit.”

Answer 6

The profit is a form of easement that entitles the holder to enter a servient land and take from its soil (e.g. timber, minerals, oil).

Question 7

What is a covenant?

Answer 7

A promise to do or not do something related to the land - it is a contractual limitation or promise regarding the land.

Question 8

What is the difference between an easement and a covenant?

Answer 8

The person granting the easement is conveying an interest in property, whereas the covenant is a contractual right.

Question 9

What is a negative covenant?

Answer 9

A promise to refrain from doing something on or related to the land.

Question 10

What is an affirmative covenant?

Answer 10

A promise to do something on the land, e.g. “maintain our common fence.”

Question 11

How do you know whether a covenant is a promise or equitable servitude?

Answer 11

Look to the type of damages P is seeking:

• if MONEY –> Covenant
• if INJUNCTION –> Equitable servitude

Question 12

What does it mean when a covenant “runs with the land”?

Answer 12

It is capable of binding successors. To run with the land, burdened and benefited properties have different tests.

Question 13

How do you know if a covenant runs with the burdened land?

Answer 13

WITHN:

• original covenant was in writing
• original parties had intent to bind
• the agreement touches and concerns the land
• both horizontal and vertical privity exists
• successor had notice of the covenant when she took.

Question 14

How do you know if a covenant runs with the benefited land?

Answer 14

WITV:

• original covenant in writing
• original parties had the intent to bind
• agreement touches and concerns the land
• vertical privity

Question 15

What is an equitable servitude?

Answer 15

A promise that equity will enforce against its successors, accompanied by injunctive relief.

Question 16

What is required to create an equitable servitude?

Answer 16

WITNES:

• original promise was in writing
• original intent to bind successors
• touch and concerns the land
• burdened assignees have notice of the promise
• ES = equitable servitude

Question 17

What is the common scheme doctrine?

Answer 17

A binding equitable servitude will be implied when:

1. when sales began, subdivider had a general scheme of residential development, which included the lot in question.
2. Lot holder had notice (actual, inquiry, or record) of the promise contained in the prior deeds.

Question 18

What is actual notice of an equitable servitude?

Answer 18

A subjectively had actual notice of the promise contained in prior deeds.

Question 19

What is inquiry notice of an equitable servitude?

Answer 19

neighborhood conforms to the common restriction - if you drive by, you can tell it’s all residential.

Question 20

What is record notice of an equitable servitude?

Answer 20

contained in a publicly recorded document, so notice is imputed to the buyer who should have looked in the record.

Question 21

How is NY different from the typical view about record notice:

Answer 21

Typical view: buyer is on record notice of the contents of prior deeds transferred by a common grantor.

NY view: buyer is not on record notice of the contents of all prior deeds transferred by a common grantor.

Question 22

Can neighbors who are not in privity with a lot holder sue to enforce a common scheme equitable servitude?

Answer 22

Yes

Question 23

When is an equitable servitude unenforceable?

Answer 23

Changed conditions are so pervasive that the ENTIRE area has changed.

The person who wants to get rid of the servitude has the burden of showing this.

Pockets of change are insufficient (even if major change in those pockets).