servitudes Flashcards
what are the forms of servitudes (5)
affirmative easements
negative easements
real covenants
equitable servitudes
reciprocal negative servitudes
For the five forms of servitudes explain the
(1) method of creation
(2) parties bound
(3) remedy
METHOD OF CREATION
affirmative easements
— prescription, implication, necessity, grant (PING)
negative easements
— writing signed by grantor
real covenants
– writing signed by grantor
equitable servitudes
– writing signed by grantor, unless implied by general scheme doctrine
reciprocal negative servitudes
– MAJ: in a subdivision, residential restrictions in prior deeds by common grantor bind subsequent grantees whose deeds don’t have the restriction if, at the start of the subdivision (1) grantor had common scheme and (2) unrestricted lot holders had notice
– MIN: not binding on subsequent grantees unless their lots are expressly restricted in writing
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PARTIES BOUND
affirmative easements
– easement appurtenant is transferred automatically with dominant tenement
– easement in gross for commercial purposes is assignable
negative easements
real covenants
– burden of promise runs to successor if writing, intent, touch and concern, H and V privity, notice
– Benefit of promise will run to successor of benefited lot if writing, intent, Touch and concern, and V privity
equitable servitudes
– successors bound if writing, intent, touch and concern, notice [no privity]
reciprocal negative servitudes
– where common scheme exists, subsequent purchasers with notice are bound
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REMEDY
affirmative easements
– injunction or damages
negative easements
– injunction or damages
real covenants
– damages
equitable servitudes
– damages? — but I think injunction can be sought
reciprocal negative servitudes
– injunction
what is an easement
a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land but not the right to possess
length of an easement
presumed to be of perpetual duration unless the grant specifically limits the interest
common examples of easements
right to lay utility lines on another’s land
right of way over another’s land
right to tap into a neighbor’s drain
types of easements
affirmative or negative
affirmative
– right to go onto and do something on servient land [right to use neighbor’s drain]
negative
– right to prevent servient landowner from doing something that would otherwise be permissible [LASS]
- Light, air, support, stream water from an artificial flow [ex: compel neighbor not to impede access to light or airflow etc.]
- MINORITY: some states allow negative easements for scenic view
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appurtenant or in gross
Appurtenant
– servient tenement (bears burden) benefits a dominant tenement
[Ex: A grants B right of way across A’s land. B’s is dominant, A is servient]
In gross
- confers some personal or pecuniary advantage that is not related to sue or enjoyment of the land
- servient land is burdened but there is no benefited or dominant tenement because the easement benefits the holder not the parcel
Ex:
right to place a billboard on another’s lot
right to swim in another’s pond
utility company’s right to lay power lines on another’s lot
ways to create an easement and acronym
PINGE
PRESCRIPTION [COAH]
(a) Continuous and uninterrupted use for the given statute’s period
(b) Open and notorious use [discoverable upon inspection]
(c) Actual use, but NEED NOT BE EXCLUSIVE
(d) hostile use / without consent
NOTE: permission defeats easement by prescription
Exception: no prescriptive easement in public land
IMPLICATION
[by operation of law] exception to statute of frauds requirement
(a) easement implied by existing use / quasi easement
For the court to imply an easement, the court has to find:
(1) the previous (prior to division) use on the servient part was apparent and continuous
AND
(2) the parties expected that the use would survive division because it is reasonably necessary to the dominant tenement’s use and enjoyment
.
.
.
(b) easement implied without any existing use
(1) subdivision plat
when lots are sold in a subdivision with reference to a recorded plat or map that shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots
OR
(2) profit a prendre
holder of a profit a prendre has implied easement to pass over the surface of the servient land and use it as reasonably necessary to extract form the servient property its minerals or some product of the servient property (timber, fish, game, etc.) as specified by terms of the profit
NECESSITY
[type of easement by implication]
Implied when a landowner coveys a portion of her land with no way out except over some part of the grantor’s remaining land
owner of the servient parcel has the right to locate the easement
—————————————————————————————————GRANT
Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state’s Statute of Frauds. So, most commonly, this means that easements to endure for greater than one year must be in writing to be enforceable. That writing must comply with all the formal requisites of a deed [deed of easement]
EXPRESS RESERVATION
grantor conveys title to land but reserves the right to continue to use the tract for a special purpose
Maj. rule – easement can only be reserved for grantor, an attempt to reserve easement for anyone else is void
how to create negative easement
expressly, by a writing signed by the grantor
NO NATURAL OR AUTOMATIC RIGHT TO A NEGATIVE EASEMENT
explain transferability of easement appurtenant and easement in gross
when does benefit and burden pass and exceptions?
TRANSFERS OF APPURTENANT
– benefit passes automatically with transfers of the dominant tenement, regardless of whether it was mentioned in the conveyance
– burden passes automatically with the servient estate UNLESS new owner is a bona fide purchaser without notice of the easement
- benefit of the easement appurtenant cannot be conveyed apart form the dominant tenement [you can’t convey the easement to someone else who is not on the benefited parcel because it is not personal] unless an exception applies:
exception to the “no transferring easements app. apart from dominant parcel” rule = it is permissible to convey the easement to the owner of the servient tenement to extinguish the easement
TRANSFERS OF EASEMENT IN GROSS
not transferable unless for commercial purposes
scope of an easement
- what is it determined by?
- who locates it?
- May it’s location change?
DETERMINED BY: grant or conditions that created it
WHEN NOT SPECIFICALLY LOCATED ON SERVIENT TENEMENT ONCE CREATED: an easement of suffi- cient width, height, and direction for the intended use will be implied.
WHO MAY LOCATE LOCATION: servient owner may select location so long as selection is reasonable
MAY IT CHANGE? If there are no specific limitations in the grant, courts assume that an easement was intended to meet both present and future needs of the dominant tenement (so, for example, an easement may widen to accommodate new, wider cars).
EXCEPTION: If, however, the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unrea- sonably overburden the servient estate.
what happens when an easement is misused?
misuse does not terminate an easement – remedy is injunction against misuse
how can servient estate be used when there is an easement on it?
The servient owner generally may use her land in any way she wishes so long as her conduct does not interfere with the easement.
what happens when an easement needs a repair
If easement holder is the sole user, easement holder has the duty to make repairs to the easement
if both the easement holder and the servient owner are users, the court will apportion the repair costs.
How to terminate an easement + acronym
END CRAMPS
ESTOPPEL
normally, you need a written release to terminate an easement, or an oral release + actual abandonment.
BUT an oral expression of an intent to abandon an easement will terminate by estoppel IF:
servient owner materially changes their position in reasonable reliance on easement holder’s assurances or representations [suhc as that easement will no longer be enforced]
NECESSITY
expire as soon as the necessity ends, unless easement was reduced to an express grant
DESTRUCTION
destruction of servient land will terminate the easement UNLESS the destruction was the result of the willful conduct of the servient owner
voluntary destruction — will NOT terminate easement [tear down building]
involuntary destruction (fire, flood) - WILL terminate an easement
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CONDEMNATION
Condemnation of the servient estate by governmental eminent domain power will terminate the easement. Courts are split as to whether easement holders are entitled to compensation.
RELEASE
release given by the easement holder to the servient land owner will terminate the easement, even for easements in gross
release must be in writing
ABANDONMENT
How to show abandonment — there has been physical action that demonstrate an intent never to use the easement again
“physical action” = erecting something on the easement making it unusable
mere non use or words of abandonment ≠ abandonment
MERGER
An easement is extinguished when title to the easement and title to the servient land become vested in the same person
The unity must be complete (that is, the duration of the servient tenement must be equal to or longer than the duration of the dominant tenement with which it is combined).
conveyance of parcel A to Bob for life estate period and remainder to Jack and conveyance of parcel B to Bob in fee simple will NOT merge parcels A and B
PRESCRIPTION
[COAH]
servient owner may extinguish easement by interfering with it through adverse possession:
(1) continuous interference
(2) open and notorious
(3) actual [exclusivity not necessary]
(4) hostile to easement holder
Ex: chain link fence to prevent easement holder from using it
STATED CONDITIONS
original easement grant may specify when or under what conditions easement will terminate
how will courts treat a wall erected partly on the property of each of two adjoining landowners or a common driveway ?
(1) treat it as belonging to each owner to the extent it rests upon their land
and
(2) imply mutual cross-easements of support = each party can use the wall or driveway and neither party can unilaterally destroy it
