VI. Easements, Covenants, & Servitudes

Question 1

What is a license? When can it be revoked? And not revoked?

Answer 1

License: permission from occupant of the land to use the land for a particular purpose

-in contrast to easements, licenses are revocable

2 exceptions/2 times when licenses are irrevocable:

(1) license coupled with an interest: license to come on land and take something on it
- ex: picking up acorns on someone’s land

(2) license + estoppel: reliance or improvements by licensee and knowledge thereof by the licensor
- fairness- if someone spends $, it’s not right to take it away

• encourages production of land
• but the licensor needs to know or have reason to believe that there is reliance by the licensee Reliance/improvement by licensor, Knowledge by licensor

Question 2

Holbrook v. Taylor

Answer 2

irrevocable license to build house on land because improvement/put money into road and house built. Knowledge by permission and then tacit approval→ watched and did not do anything

Question 3

Can oral licenses be revocable? Two cases and opinions.

Answer 3

Shepard v. Durvine: don’t need a document to be irrevocable

Henry v. Balton: need a document

Question 4

Implied Easement: Easement by Necessity?

Answer 4

easement by necessity

• titled severed
• at the time, Q: is this easement necessary?

Majority: strict necessity is required
-absolutely need to have access to the easement- no other way to reach

Minority: reasonable necessity is enough
-don’t need absolute necessity for access but access is much harder in other ways

Q: Why have easement by necessity?
-efficiency: look at both sides:
Servient tenant: (burdened…) a little
Dominant tenant: (benefitted…) a lot

Question 5

Implied Easement: Prior Existing Use

Answer 5

Requirements

Severance of title, land divided into at least two parcels

**At time of severance the use/necessity has to be present

Existing apparent and continuous use of a part of tract of land for benefit of another party

Reasonable necessity beneficial to use and enjoyment of dominant tenement

Question 6

Easement by Prescription?

Answer 6

Requires

Open and notorious use (visible/ apparent such that diligent owner would notice)

Adverse and under claim of right (objective, good faith, hostility test)

Continuous and uninterrupted use (for length of statutory period)

Exclusive (from everyone but owner **Diff from AP)

Question 7

Easement by Public Trust Doctrine

Answer 7

Easement held in the public!
Arnold→ All water land held in trust for the public
Neptune City→ Extended rule to allow for uses of bathing, swimming
Matthews→ Extended even more to wet sand area b/c need access to the water

Factors to Consider
Location of dry sand in relation to the foreshore
Extent and availability of publicly owned upland sand area
Nature and extent of public demand

Usage of upland sand by owner

Question 8

Raleigh Avenue Beach Assn. v. Atlantis Beach Club

Answer 8

Not exempt because private club, public trust doctrine (and its important purposes) is stronger than right to exclude

Question 9

Miller v. Lutheran Conference Camp Association

Answer 9

Yes can take all prescribed easements and transfer them despite being in gross and hard to track

Historically could not be assigned

Commercial yes assign (benefit econ), non commercial no good

Party’s intentions

One Stop Rule: all rights must be used together (trend away from this)

Divisibility: looked at intent:

“one stock rule”: everyone together must agree before can assign

Majority rule: can divide an easement in gross unless it’s contrary to intentions of the parties

Question 10

Van Sandt v. Royster

Answer 10

Deed did not express easement for sewage pipe that went underneath property but knew it was there (where does the water go?) Court found this to be an easement of pertinent as they all benefit from the pipe being there

Quasi- Easement: Part of your land benefits other part of your land (indefinite duration)

Question 11

Termination of Easements? (8 ways)

Answer 11

Owner releases easements because don’t need/use anymore

Expired terms

Necessity has ended

Merger (dominant and servient land owned by same owner)

Estoppel (implied – reasonable reliance on dom’s actions)

Condemnation of servient estate by government

Prescription (blocks for prescription period over)

Abandonment (must be more than non-use)

Question 12

Marvin M Brandt R. Trust v. US

Answer 12

owner claims government has no future interest in easement via “right of way” previously created on his property for railroad that failed, court found for owner since gov previously argued this as easement

Question 13

Negative Easements? Old English and U.S. Additions

Answer 13

Right of dominant owner to stop a servient owner from doing something on the servient land

Old English 
Block windows 
Interfere with air 
Remove building support 
Interfere with water flow 

US Added (easier to record so no longer allow prescriptions)
Solar easement
Historic preservation
Conservation (preserve open space, coast line, farm land etc)

Question 14

What is a covenant?

Answer 14

romises or agreements made in relation to land that bind the subsequent owner simply because they own the property - seeking damages or injunction.

Question 15

What is a servitude?

Answer 15

romises or agreements made in relation to land that bind the subsequent owner simply because they own the property - seeking injunction.

Question 16

What do you need for a covenant burden to run?

Answer 16

Writing

Intent (to bind successors)

Horizontal Privity of Estate

Vertical Privity

Touch and Concern (3rd restatement treats as OK)

Notice

Question 17

What do you need for a covenant benefit to run?

Answer 17

Writing

Intent

Touch and Concern

Vertical Privity (relaxed standard)

Question 18

Horizontal Privity of Estate? (Two approaches)

Answer 18

Relationship between A and B

Historically only landlord-tenant qualified

U.S. today

Mutual Interest Approach

Strict, must be interest in the same land

Ex. Co-tenants, life-estates (neighbors do not count)

Successive Interest Approach → Majority

Covenant created the transaction of which the covenant party conveys interest in the land (via deed)

No Horizontal Privity Required

Question 19

Vertical Privity?

Answer 19

Vertical Privity

Between original party and successor

Must be same exact interest→ ex. Entire estate

Question 20

What is necessary for an e. servitute burden to run?

Answer 20

Promise in writing or implied from common plan

Intent (to bind successors)

Touch and Concern

Affirmative covenant less likely to attach to land

Notice to successor

Actual

Record (filed with court)

Inquiry

Question 21

What is required for a e. servitute benefit to run?

Answer 21

Equitable Servitude Benefit:(Benefit in Gross WILL NOT RUN in most jurisdictions)

Promise in writing or implied in common plan

Intent

Touch and Concern

Question 22

Neponsit Prop Owner v. Savings Bank-

Answer 22

lays the ground work for all homeowners’ associations today*

Affirmative covenant: something (fees) that you have to do

v. negative covenant: something have to refrain from doing (“only use for residential purposes”; “must build 30’ behind…”)
- Ct: negative covenants are more likely to touch & concern: less concerned about since it may not be a big deal but making someone do something = more imp

Q1: touch & concern: related to the use of the land

Test: covenant must affect the legal relations of the owners of the land, not just as community members, but as owners of the land in order to run with the land

Ct: yes, = fee, but it’s related to the land because it’s for maintenance and affects the property value and benefits the owners

Q2: vertical privity: privity of estate

Ct finds vertical privity despite the argument that the realty co is just assisting and not in possession of rights- Ct: they are agents in economic interest of the owners = vertical privity

^Ct applied flexible standard

Question 23

Sanborn v. McLean

Answer 23

Focus = common plan

TODAY, courts focus on 1st lot conveyed: look at intent: is there a general plan of restrictions in the interest of future buyers and sellers?

Common plan?

(1) % of deeds that contain the restriction
(2) are there maps with restrictions given to buyers?
(3) sales and advertising brochures
(4) oral representations to buyers

This court? Focuses on easements: but think of as implied reciprocal servitude: conveyance with a restriction that benefits land and the grantee, as well: mutual (both are obligated)

Notice

• actual: strongest form
• record: deeds/courthouse records
• inquiry: everything looks same: character of lots give notice of duty to inquire (objective test)

Question 24

Termination of Covenants

Answer 24

Merger: Same party owns land that is benefited and burdened

Release: written

Acquiescence: plaintiff fails to enforce covenant against other breaching parties

Abandonment: entire community decides not to enforce

Unclean hands: Plaintiff previously violated

Latches: unreasonable delay in enforcing

Estoppel: relied on plaintiff’s conduct

Eminent domain: government can take land and end covenant

Prescription: like AP, benefit for x amount of time

Fixed period: end of terms time period

Relative hardship: enforcement would cause greater hardship to servient owner

Changed conditions: community has changed such that the purpose of the covenant is thwarted

Question 25

Nahrstedt v. Lakeside Village Condominium Association, Inc

Answer 25

Cat woman claims indoor cats should be allowed because they have no impact on other residents. Court found that the pet restriction is rationally related to sanitation and health concerns and therefore OK. Restrictions are presumptively lawful unless they are shown to violate public policy or the burden they create is greater than the benefit they give

Question 26

What is the Restraints on Alienation Test?

Answer 26

Is the restriction arbitrary?

Does it violate public policy?

Is the burden greater than the benefit?