Servitudes - Licenses, the Profit, Covenants, and Equitable Servitudes Flashcards
What is a license?
A mere privilege to enter another’s land for a specific purpose.
Does a license have to be in writing to be enforceable?
No - not subject to the statute of frauds.
When can a license be revoked?
At any time unless estoppel applies to bar revocation (i.e. licensee put in substantial $ and/or labor and reliance was reasonable).
Is a theater or movie ticket a license?
Yes - it gives the holder the right to enter the premises to watch a show. It is freely revocable.
What happens when an easement is granted orally?
It is actually just a license.
Define “the profit.”
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).
What is a covenant?
A promise to do or not do something related to the land - it is a contractual limitation or promise regarding the land.
What is the difference between an easement and a covenant?
The person granting the easement is conveying an interest in property, whereas the covenant is a contractual right.
What is a negative covenant?
A promise to refrain from doing something on or related to the land.
What is an affirmative covenant?
A promise to do something on the land, e.g. “maintain our common fence.”
How do you know whether a covenant is a promise or equitable servitude?
Look to the type of damages P is seeking:
- if MONEY –> Covenant
- if INJUNCTION –> Equitable servitude
What does it mean when a covenant “runs with the land”?
It is capable of binding successors. To run with the land, burdened and benefited properties have different tests.
How do you know if a covenant runs with the burdened land?
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.
How do you know if a covenant runs with the benefited land?
WITV:
- original covenant in writing
- original parties had the intent to bind
- agreement touches and concerns the land
- vertical privity
What is an equitable servitude?
A promise that equity will enforce against its successors, accompanied by injunctive relief.
What is required to create an equitable servitude?
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
What is the common scheme doctrine?
A binding equitable servitude will be implied when:
- when sales began, subdivider had a general scheme of residential development, which included the lot in question.
- Lot holder had notice (actual, inquiry, or record) of the promise contained in the prior deeds.
What is actual notice of an equitable servitude?
A subjectively had actual notice of the promise contained in prior deeds.
What is inquiry notice of an equitable servitude?
neighborhood conforms to the common restriction - if you drive by, you can tell it’s all residential.
What is record notice of an equitable servitude?
contained in a publicly recorded document, so notice is imputed to the buyer who should have looked in the record.
How is NY different from the typical view about record notice:
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.
Can neighbors who are not in privity with a lot holder sue to enforce a common scheme equitable servitude?
Yes
When is an equitable servitude unenforceable?
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).
