VI. Easements, Covenants, & Servitudes Flashcards
What is a license? When can it be revoked? And not revoked?
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
Holbrook v. Taylor
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
Can oral licenses be revocable? Two cases and opinions.
Shepard v. Durvine: don’t need a document to be irrevocable
Henry v. Balton: need a document
Implied Easement: Easement by Necessity?
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
Implied Easement: Prior Existing Use
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
Easement by Prescription?
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)
Easement by Public Trust Doctrine
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
Raleigh Avenue Beach Assn. v. Atlantis Beach Club
Not exempt because private club, public trust doctrine (and its important purposes) is stronger than right to exclude
Miller v. Lutheran Conference Camp Association
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
Van Sandt v. Royster
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)
Termination of Easements? (8 ways)
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)
Marvin M Brandt R. Trust v. US
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
Negative Easements? Old English and U.S. Additions
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)
What is a covenant?
romises or agreements made in relation to land that bind the subsequent owner simply because they own the property - seeking damages or injunction.
What is a servitude?
romises or agreements made in relation to land that bind the subsequent owner simply because they own the property - seeking injunction.
What do you need for a covenant burden to run?
Writing
Intent (to bind successors)
Horizontal Privity of Estate
Vertical Privity
Touch and Concern (3rd restatement treats as OK)
Notice
What do you need for a covenant benefit to run?
Writing
Intent
Touch and Concern
Vertical Privity (relaxed standard)
Horizontal Privity of Estate? (Two approaches)
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
Vertical Privity?
Vertical Privity
Between original party and successor
Must be same exact interest→ ex. Entire estate
What is necessary for an e. servitute burden to run?
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
What is required for a e. servitute benefit to run?
Equitable Servitude Benefit:(Benefit in Gross WILL NOT RUN in most jurisdictions)
Promise in writing or implied in common plan
Intent
Touch and Concern
Neponsit Prop Owner v. Savings Bank-
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
Sanborn v. McLean
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)
Termination of Covenants
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
Nahrstedt v. Lakeside Village Condominium Association, Inc
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
What is the Restraints on Alienation Test?
Is the restriction arbitrary?
Does it violate public policy?
Is the burden greater than the benefit?
