Servitudes and Adverse Possession

Question 1

Forms of Servitude

Answer 1

1. Affirmative Easements
2. Negative Easements
3. Real Covenants
4. Equitable Servitudes
5. Reciprocal Negative Servitudes

Question 2

Affirmative Easements (PING)

Answer 2

May be created by:

1. Prescription
2. Implication
3. Necessity
4. Grant

Question 3

Easement Defined

Answer 3

• The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenament.
• affirmative or negative
• Appurtenant or in gross

Question 4

Affirmative Easements

Answer 4

• Affirmative = the right to do something on servient tenament. (most easements are affirmative)

Question 5

Negative Easements

Answer 5

• Negative = entitles holder to prevent servient landowner from doing something that would otherwise be permissible.
• Can only be created expressly, by writing, signed by grantor. No natural/automatic right to a negative easement.
• ONLY 4 categories:
  
  • Light
  • Air
  • Support (action prohibited would erode subjacent support)
  • Stream water from an artificial flow
• In a minority of states (e.g. CA), 5th category = scenic view

Question 6

Easement Appurtenant to land

Answer 6

• appurtenant easment benefits its holder in his physical use or enjoyment of his property.
• TWO parcels of land must be involved
• Easement will always be appurtenant to the **dominant tenement **b/c confers benefit linked to owner of the DT’s use and enjoyment of his own land.

Question 7

Easement in gross

Answer 7

• easement in gross confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land
  
  • servient land is burdened
  • but there is no dominant tenement
• Common examples
  
  • Right to place billboard on another’s land
  • Right to fish or swim in another’s pond
  • Power Co’s right to lay power lines on another’s land.

Question 8

Transferability of Easements

in gross vs. appurtenant

Answer 8

• Easement appurtenant passes automatically with the dominant tenement, regardless of mention in conveyance
• Easement in gross is not transferable* *unless it is for commercial purposes.
  
  • e.g. fishing co’s easemetn to use B’s lake to fish for bait = commercial

Question 9

Creation of Affirmative Easements

(4 ways - PING)

Answer 9

By Grant: Most common method - to last more than 1 year must be in writing that complies with the formal elements of a deed (i.e. deed of easement).

By Implication: The use must be 1) apparent and 2) the parties expected that the use would continue because 3) it is reasonably necessary to the use and enjoyment of the dominant land.

By Necessity: (usually, landlocked) Easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of grantor’s remaining land.

By Prescription: easement may be acquired by *adverse use (like adverse possession but doesn’t require exclusive possession, only use) *(continuous for statutory period; open and notorious; actual use; hostile - w/o servient owner’s consent)

Question 10

Scope of Easement

Answer 10

Determined by the terms of the grant or the conditions which created it

Holder of easement may not unilaterally expand its scope.

Question 11

Termination of an Easement

(8 ways)

Answer 11

1. Estoppel
2. Necessity
3. Destrution of Servient Land
4. Condemnation
5. Release
6. Abandonment
7. Merger
8. Prescription

Question 12

Easement Termination by Estoppel

Answer 12

When the servient owner 1) materially changes his position 2) in reasonable reliance on the easement holder’s assurances that the easement will not be enforced, the holder is estopped from enforcing it.

Question 13

Easement Termination by Necessity

Answer 13

• Easements created by necessity expire as soon as the need ends.
• However, if the easement was created by express grant, even if because of necessity, it does NOT end just because necessity ends.

Question 14

Termination of Easements by

Destruction or Condemnation

Answer 14

• If servient land destroyed, other than by willful conduct of the servient owner, the easement ends.
• If servient estate is condemned through the use of eminent domain, the easement ends.

Question 15

Termination of Easement by Release

Answer 15

A written release, given by the easement holder to the serviant owner ends the easement.

Question 16

Termination of Easement by Abandonment

Answer 16

In order to abandon an easement such that it termianates, the easement holder must demonstrate through physical action the intent to never use the easement again.

Mere non-use is NOT sufficient.

Question 17

Termination of Easement by Merger

Answer 17

Merger Doctrine (unity of ownership):

• easement is extinguished when title to the easement and the title to the serviant land become vested in the same person - i.e. they MERGE!
  
  • only if duration of servient estate is equal to or longer than duration of dominant estate. (e.g. fee simple in servient land but life estate in dominant land)
• Note - later separation of title does NOT revive the easement. A new owner of the once-dominant estate starts from scratch in the creation process (PING)

Question 18

Termination of Easement by Prescription

Answer 18

Servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (COAH).

Question 19

The License

Answer 19

• a mere privilege to enter another’s land for a delineated purpose
• *not *subject to the statute of frauds
• freely revocable
  
  • Except estoppel licensee has invested substantial money/labor in reasonable reliance
• Common examples
  
  • Tickets create freely revocable licenses
  • Neighbors talking by the fense - an oral easement in violation of SofF creats a freely revocable license

Question 20

The Profit

Answer 20

• entitles its holder to enter the servient land and take the soil or some other substance of the soil (mineral, timber, oil, etc.)
• all the rules of easement creation, termination, and scope apply.

Question 21

Covenants

Answer 21

• a promise to do or not do something related to land
• UNLIKE easements b/c not the grant of a property interest but rather a contracual limitation/obligation regarding land
• Negative/Restrictive or Affirmative

Question 22

Negative/Restrictive Covenant

Answer 22

a promise to refrain from doing something related to land (e.g. promise not to build for commercial purposes)

Question 23

Affirmative Covenant

Answer 23

a promise to do something related to land (e.g. promise to paint common fence)

Question 24

Covenant vs. Equitable Servitude

Answer 24

Differentiate based on REMEDY sought

• If P seeks money damages = COVENANT
• If P seeks injuction = EQUITABLE SERVITUDE

Question 25

When will Burden of Covenant Run with the land?

(6 Requirements)

Answer 25

1. Writing - original promise b/w A and B must have been in writing
2. Intent - original parties both intended that the promise would run (courts are generous about finding intent)
3. Touch and Concern the Land - must be of and pertaining to the land; i.e. promise must affect the parties’ legal relations as landowners
   
   • Covenants to pay homeowners’ fees and not to compete DO meet this req.
4. Horicontal Privity - the original parties must be in succession of estate - meaning that they were in a grantor-grantee, landlord-tenant, or mortgagor-mortgagee relationship = HARD to establish
5. Vertival Privity - requires some non-hostile nexus between original owner of burdened property and new owner - contract, devise, descent.
   
   • VP NOT present if interest acquired through adverse possession.
6. Notice - current owner of burdened land must have had notice of promise when she took.

Question 26

When will BENEFIT of Covenant Run with the Land?

(4 requirements)

Answer 26

1. Writing - the original promise between original parties was in writing
2. Intent - the original parties intended that the benefit would run
3. Touch and Concern - the promise affects the parties as landowners
4. Vertical Privity - a non-hostile nexus between B and B1

Question 27

Equitable Servitude

Answer 27

• a promise that equity will enforce against successors. Remedy for breach is INJUCTIVE relief
• To create one that will bind successors:
  
  • writing - generally, but not always requreid
  • Intent - Original parties intended to bind successors
  • Touch and concern - promise affects parties as landowners
  • Notice - successors of the burdened land had notice of the problem
  • privity NOT required

Question 28

Implied Equitable Servitude

General or Common Scheme Doctrine

Answer 28

The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant IF

1. When the sales began, a subdivider had a general scheme of residential development which included D’s lot
2. The defendant lotholder had NOTICE of the promise contained in the prior deeds (actual, Inquiry, or Record notice)

Question 29

Three kinds of Notice for an

Implied Equitable Servitude

Answer 29

D must have had notice, meaning either

1. Actual notice - literal knowledge of the promises in prior deeds
2. Inquiry notice - the neighborhood conforms to the common restriction (the lay of the land) such that he should have asked
3. Record Notice - sometimes imputed to buyers on the basis of the publicly recorded documents
   
   • NOTE - courts split on whether subsequent buyer has record notice based on contents of prior deeds to others. BETTER VIEW is that the subsequent buyer does NOT have record notice based on contents of deed transferred to others - less burdensome

Question 30

Equitable DEFENSE to enforcement

of Equitable Servitude

Answer 30

Changed Conditions - the changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed.

MERE POCKETS of limited change never** **enough.

Question 31

Adverse Possession

Answer 31

Possession for a statutorily prescribed period can ripen to title if certain requirements met

1. Continuous - uninterupted for statutory period
2. Open and Notorious - sort of possession the owner would usually have under the circumstances
3. Actual - the entry must be literal (not symbolic/letter of intent)
4. Hostile - possessor does not have owner’s consent to be there

Possessor’s subjective state of mind is irrelevant

Question 32

Tacking to meet AP “Continuous” Element

Answer 32

One Adverse Possessor may tack on to his time his predecessor’s time, so long as there is privity between them (any nonhostile nexus such as blood, contract, deed, will).

Tacking is NOT allowed when there has been ouster.

Question 33

Disability of Owner

Effect on AP

Answer 33

The statute of limitations will not run against a true owner who is afflicted by a disability AT THE START of the adverse possession.

Common disabilities: insanity, infancy, imprisonment

If disability manifests after adverse possession has begun, the statute of limitations WILL NOT be tolled.

Question 34

AP: “Continuous”

Answer 34

Continuous possession is possession that the average owner would make of the property for the statutory period.

Question 35

AP: “Open and Notorious”

Answer 35

Possession is open and notorious when it is such as the usual owner would make of the land and is sufficient to put the true owner on notice of the possession.

Question 36

AP: “Actual and Exlusive”

Answer 36

Actual and exclusive possession means not sharing possession with the true owner or the general public.

Question 37

AP: “Hostile”

Answer 37

• Hostile possession means without the owner’s consent.
• It does not matter whether the possessor believes he is on his own land or knows he is trespassing.
  
  • If holds a void deed, possession is hostile.

Question 38

Adverse Possession and Deed Recording Acts

Answer 38

Subsequent purchasers are not protected by the recording acts against interests that arise by operation of law (including title by adverse possession).