Servitudes / Nonpossessory Interests

Question 1

easement

Answer 1

grant of interest in land that allows someone to use another’s land

Question 2

types of easements

Answer 2

1) affirmative: right to go onto and do something on servient land (land that is imposed upon by easement)
2) negative: right to prevent servient landowner from doing something (can only be created expressly, by writing signed by grantor)

Example: easement holder prevents servient landowner from building something that would block your view

Question 3

easement appurtenant & passing to future owners

Answer 3

• entitles dominant estate owner to use servient estates land
• look for 2 parcels of land: dominant estate (derives benefit) and servient estate (bears the burden)
• easement passes automatically with transfers of dominant estate (attaches to dominant estate)
• burden of easement appurtenant also passes automatically with servient estate (unless new owner is a bona fide purchaser without notice of easement)

Question 4

easement in gross

Answer 4

• easement is in gross if it gives holder only some PERSONAL or PECUNIARY advantage that is NOT related to use/enjoyment of their land
• servient land is burdened (no dominant estate b/c easement benefits HOLDER, instead of another parcel)
• NOT transferable unless it is for commercial purposes (commercial easements in gross are transferable)

examples: right to place billboard on another’s lot; right to swim in another’s pond

Question 5

creation of easement

Answer 5

PING
- prescription
- implication
- necessity
- grant

Question 6

by grant

Answer 6

• any easement must be memorialized in writing and signed by holder of servient estate
• unless its duration is brief enough to be outside of S of F (deed of easement)

Question 7

by implication
Easement implied from PRE-EXISTING USE

Answer 7

• created by operation of law - exception to S of F
• easement implied from preexisting use/quasi-easement

for court to imply easement, it would have to find:
- previous (prior to division) use on servient part was apparent and continuous AND
- parties expected that use would survive division b/c it is necessary to dominant estate’s use and enjoyment

Question 8

necessity

Answer 8

easement by necessity (another form of easement by implication) will be implied when a landowner sells a portion of her land and division leads to no way out except over part of grantor’s remaining land

*think: we need the easement

Question 9

prescription

Answer 9

• a process of acquiring an easement (similar to acquiring title by adverse possession)
• acquirier’s use of another’s land must be (COAH):
  1. continuous for applicable statutory period
  2. open and notorious use
  3. actual use (NEED NOT BE EXCLUSIVE)
  4. hostile - without owner’s permission

Example: property owner places a large sewer line across neighbor’s property without neighbor’s permission

NOTE: an easement can also be TERMINATED by prescription if the servient landowner interferes with easement enough to meet above requirements

Question 10

scope of an easement (3 things)

Answer 10

• determined by terms of grant/conditions that created it
• misuse of an easement –> doesn’t terminate easement (appropriate remedy for servient owner = injunction against misuse)
• easement holder cannot unilaterally expand easement and has duty to make repairs if sole user

Question 11

termination

Answer 11

8 ways to end an easement (ENDCRAMP), in addition to its stated conditions in the original easement
1. estoppel
2. necessity
3. destruction
4. condemnation
5. release
6. abandonment
7. merger
8. prescription

Question 12

estoppel

Answer 12

• usually, oral expression of intent to abandon easement won’t end easement unless it’s also in writing (release) or accompanied by action (abandonment)
• BUT if SERVIENT owner changes their position in reliance on easement holder’s representations (such as that the easement won’t be enforced anymore), the easement ends through estoppel/it’s gone

Question 13

necessity

Answer 13

easements created by necessity end as soon as the necessity ends (unless easement was reduced to an express grant)

Question 14

destruction

Answer 14

destruction of servient land will end easement

Question 15

condemnation

Answer 15

condemnation of servient estate by gov’t eminent domain power will end easement

Question 16

release

Answer 16

• release/intent to abandon easement given by easement holder to servient land owner will end easement (applies to easement in gross too)
• must be in writing

Question 17

abandonment

Answer 17

• easement holder must show physical action (building a structure that blocks access to easement) an intent to never use it again
• mere non-use of easement or mere words (expressing wish to abandon) are insufficient to terminate by abandonment

Question 18

merger (unity of ownership)

Answer 18

easement is extinguished when ownership to easement & title to servient land become vested in same person (b/c a person doesn’t need an easement over their own land)

***watch for situation where easement is conveyed to the servient tenement

Question 19

prescription

Answer 19

servient owner may TERMINATE easement by interfering with it per elements of adverse possession

COAH

Question 20

license

Answer 20

• permission to go onto another’s land
  (unlike easement, license is NOT AN INTEREST in land; REVOCABLE at the will of licensor)
• license is personal to licensee so it’s inalienable
• classic license cases: ticket cases (freely revocable license); neighbors talking by the fence (beware of oral easements); oral permission to use licensor’s pool

Question 21

creation of license

Answer 21

• writing not needed (failed attempt to create easement results in license–if grantor orally grants easement for more than one year; it is unenforceable but grantee does have a license)

Question 22

revocation of licenses

Answer 22

• freely revocable, at will of licensor, UNLESS estoppel applies to bar revocation

Question 23

estoppel applies to bar revocation of license
(exception to general rule that licenses are revocable at will)

Answer 23

when licensee has invested tons of $$$$ or labor or both in reliance on license’s continuation, license becomes an easement by estoppel, which lasts until easement holder gets enough benefit to reimburse him for his expenditures

Question 24

the profit

Answer 24

• the profit entitles its holder to enter the servient land AND take from it some resources (minerals, soil, fish, etc); O permits A to come onto O’s land to cut and remove timber
• all the rules re: creation, alienation, and termination of easements are applicable to profits

Question 25

extinguishing profit through surcharge

Answer 25

misuse or overuse of resources on servient estate

Question 26

profit can be appurtenant or in gross

Answer 26

• if profit exists to serve a dominant estate, profit is appurtenant and can only be transferred along w/ dominant estate (cannot assign the profit!)

Question 27

can profit be conveyed from original grantee to third party?

Answer 27

yes

Question 28

covenant

Answer 28

• written promise to DO or NOT DO something related to land (e.g., to maintain a fence, or to not build a multifamily dwelling)
• usually found in deeds and when certain elements are met, they run with the land (subsequent owners may enforce or be burdened by covenants)
• not a grant of a prop interest; it is a CONTRACTUAL LIMITATION OR PROMISE re land

**VARIANCE FROM GOV’T REGULATION DOES NOT PREVENT ENFORCEMENT OF A PRIVATE COVENANT

Question 29

termination of covenants (3 ways)

Answer 29

as with all other nonpossessory interests, a covenant can be terminated by:
- written release
- merger of benefitted and burdened estate, or
- condemnation of burdened property

Question 30

negative covenant/restrictive covenants

Answer 30

• restrictive covenant (promise to REFRAIN from doing something re land; e.g., I promise to not have pets in my condo)

Question 31

affirmative covenant

Answer 31

promise to do something related to land

Question 32

covenant v. equitable servitude

Answer 32

if pff wants money damages, you must construe promise as a covenant

if pff wants an injunction, you must contrue promise as equitable servitude

Question 33

running w/ the land

Answer 33

• one tract is burdened by promise and another is benefitted by the promise
• key inquiry: when is a covenant capable of binding successors/when will the burden and/or benefit run to successors?

Question 34

example covenant hypo:

Answer 34

neighbor A promises neighbor B that A will not build for commercial purposes on A’s property

A’s parcel is burdened by promise; B’s parcel is benefitted

A sells her burdened parcel to A-1; B sells his benefitted parcel to B-1

A-1 has started manufacture of a steak sauce plant on premises; B1 wishes to proceed against A-1 for $ damages

ASK:
1) Does the burden of A’s promise to B run from A to A-1?
2) Does the benefit of A’s promise to B run from B to B-1?

Question 35

requirements for BURDEN to RUN

Answer 35

• it is harder for the burden to run than for the benefit to run
• W I T H N
• Writing (original promise between A and B) must have been in writing
• intent (original parties must have intended that the covenant would run – look for language in conveyance itself
• touch and concern (promise must affect parties’ legal relations as landowners and not just members of community)
  restrictive covenants touch and concern the land if they restirct the servient parcel owner in her use of that parcel; affirmative covenants touch and concern land if they require holder of the servient estate to do something that increases her obligations
• horiontal and vertical privity
• notice (successor must have had notice of the promise when she took – to be bound by a covenant, a subsequent purchaser for value MUST have had actual, inquiry, or record notice of the covenant at the time of the purchase!)

Question 36

horizontal privity

Answer 36

• nexus b/w original promising parties (A and B)
• they have to be in a grantor-grantee or landlord-tenant or mortgagor-mortgagee relationship when covenant created (two must have shared some interest in land independent of the covenant)

Question 37

vertical privity

Answer 37

• refers to nexus b/w successor in interest (A-1) and the originally covenating party (A)
• pretty easy to establish; just requires some non-hostile nexus, successor holds entire interest held by covenanting party (only time it will be absent – when successor got her interest through adverse possession)

Question 38

requirement for BENEFIT to run (compare it to elements for burden to run)

Answer 38

• does successor (B-1) have standing to enforce the covenant? if following elements are met, the promisee B’s successor in interest (B-1) MAY enforce the covenant!
• WITV
• Writing (original promise between A and B must have been in writing)
• Intent (original covenating parties must have intended that benefit would run; they intended that successors in interest to promisee would be able to enforce covenant)
• Touch and concern (if the promised performance benefits the promisee and her successors in their use and enjoyment of benefitted land; promise must affect the parties as landowners)
• Vertical privity (there must be a non-hostile nexus b/w original promisee (B) and the successor in interest (B-1))

NO NOTICE and NO HORIZONTAL PRIVITY (EASIER FOR BENEFIT TO RUN THAN FOR BURDEN TO RUN)

PROMISEE B’S SUCCESSOR (B-1) CAN ENFORCE COVENANT AGAINST ORIGINAL PROMISOR (A) BUT NOT PROMISOR’S SUCCESSOR (A-1)

Question 39

covenants to pay money

Answer 39

covenants to pay money to be used in connection with land (homeowners’ association fees) and covenants not to compete – DO TOUCH and CONCERN the land

Question 40

equitable servitudes

Answer 40

• promise that equity will enforce against successors of burdened land (doesn’t matter if it runs with land or not)
• i.e., covenants that are enforced in equity against successors of BURDENED land through injunctive relief –> they need to have notice of the covenant

if money damages are sought, use real covenant analysis
if party seeks injunction, consider if requirements for enforcement as an equitable servitude have been met

Question 41

creation of equitable servitude

Answer 41

• like real covenants, they are created by promises containing in a writing that complies with SoF

to create an equitable servitude that BINDS successors:
- writing (original promise was in writing/CAN BE IN A DEED – common scheme doctrine is an exception)
- intent of original parties for promise to be binding
- touch and concern (promise affects parties as landowners)
- notice (subsequent purchasers of land burdened by covenant had actual, inquiry, or record notice of the covenant when they acquired the land)

NOTE: notice IS NOT required for benefit to run (just need first 3 requirements for benefit to run!)

Question 42

implied equitable servitude/reciprocal negative servitude (common scheme doctrine)

Answer 42

• hypo: A subdivides her land into 50 lots; she sells lots 1 through 45 through deeds that contain convenants restricting use to residential purposes; A then sells one of the remaining lots to a commercial entity, B, by deed without such covenant. B now seeks to build a big store on his lot. Can B be enjoined from doing so?
• court will imply an equitable servitude – to hold the unrestricted lot holder to the promise
• if a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding ON ALL PARCELS provided there was a COMMON SCHEME of development and NOTICE of covenants

Question 43

common scheme

Answer 43

1. COMMON SCHEME: when sales began, the subdivider had a common scheme of residential development which included D’s lot (scheme can be evidenced by recorded plat, general pattern of restrictions, etc); AND
2. NOTICE: defendant lot-holder had NOTICE when it took

actual notice

inquiry notice–neighborhood seems to conform to common restriction

record notice–there’s a prior deed with covenant in the grantee’s chain of title

Question 44

defenses to enforcement

Answer 44

a court will NOT enforce an equitable servitude if:

• neighborhood conditions have changed so that enforcement would be inequitable (changed circumstances alleged by party seeking release from terms of equitable servitude must be so pervasive that entire area/subdivision has changed)