Easements, Covenants, Servitudes, Profits

Question 1

What is an easement?

Answer 1

An easement is a non-possessory interest in land involving a privilege or an advantage which one holds in the land of another. The easement holder has a right to use the land burdened by the easement for a special purpose or the right to restrict the owner or possessor of the land. The easement holder has no general right to full possession or enjoyment of the land.

Question 2

What is the servient tenement?

Answer 2

In an easement appurtenant, the servient tenement is the land subject to the easement.

Question 3

What is a dominant tenement?

Answer 3

In an easement appurtenant, the dominant tenement is the land that has the benefit of the easement.

Question 4

What is a an easement appurtenant?

Answer 4

It is an easement that confers a benefit on a tract of land (like a pathway through land). It involves, must involve, two tracts of land. No conveyance of easement right apart from the possession of the dominant tenement.

Question 5

What is an easement in gross?

Answer 5

This is a right to use the servient tenement. Utility companies good example. No dominant tenement by definition because this type of easement is attached to the user, not the land.

Question 6

What is an affirmative easement?

Answer 6

Entitles the easement holder to make affirmative use of the land and enter upon the servient tenement in a away that would otherwise constitute a trespass.

Question 7

What is a negative easement?

Answer 7

It is a form of a restrictive covenant. It entitles the holder to compel the landowner to restrict the owner of the servient tenement in some way – like building restrictions or other LAWFUL uses.

Question 8

What are the 6 ways you can create an easement?

Answer 8

Reservation; implication; presecription; express grant; necessity.

Question 9

What is the mnemonic for the 6 ways to create and easement?

Answer 9

RIPEN

Question 10

How is an easement created by reservation?

Answer 10

The owner of a present possessory interest in land conveys title to someone but reserves a right to continue to come on the land and use it for a particular purpose. In short, the grantor passes tittle but reserves and easement interest.

Question 11

How is an easement created by implication?

Answer 11

Only arises when an owner of a unitary tract of land subdivides that estate or when an owner owns a series of tracts and sells off one or more of them. In other words, there has been previous use. There must also be an element of necessity – for example, the subdividing causes one of the tracts to have no access to a road.

Question 12

How is an easement created by prescription?

Answer 12

Like adverse possession, created by long and continued use, but need not be exclusive. zUse must be open, notorious, hostile, and continuous for the statutory period.

Question 13

How is an easement by necessity created?

Answer 13

There needs to be a very strong showing of necessity. Unlike an easement by implication, there need not be prior use. Necessity is strict, like no access to a public road.

Question 14

How is an easement by express grant created?

Answer 14

In writing. Signed by grantor. A deed allowing use of property. Manifest intent to create an easement, describe the land, identify the g’or and g’tee.

Question 15

How are easements terminated?

Answer 15

Estoppel; necessity; destruction; release; abandonment; merger (unity of ownership); condemnation; prescription

Question 16

How does termination of an easement by estoppel occur?

Answer 16

The servient landowner changes position in reasonable reliance on the easement holders assurances that the easement will no longer be enforced.

Question 17

How does termination by necessity occur?

Answer 17

If you have an easement by necessity (which would include an easement by implication), the easement ends when the necessity ends. In other words, there is no longer the need.

Question 18

How does termination by destruction occur?

Answer 18

The servient land is destroyed, no easement anymore.

Question 19

How does termination by condemnation occur?

Answer 19

If servient land is condemned, no easement anymore. easement terminated.

Question 20

What is termination by release?

Answer 20

Easement holder releases easement in writing. Concurrence of both owners. Amounts to a conveyance.

Question 21

Termination by abandonment?

Answer 21

Through physical action or other indicia of intent, easement holder demonstrates an intent to permanently abandon the easement. Mere non-use may not be enough, but some non-use combined with other indicia (e.g words) may be sufficient.

Question 22

Termination by unity of ownership/merger?

Answer 22

Easements involve two different people, by definition. If the owner of the dominant and servient tenement become one, then the easement is terminated.

Question 23

What is termination of an easement by prescription?

Answer 23

Just as an easement can be created by prescription (adverse possession), an easement can also be terminated by prescription if the owner of the servient tenement excludes the easement holder from the usage of the easement for the prescribed statutory period of time. For example:

Adam and Brent are neighbors. Brent holds an easement that allows him to cut through Adam’s property to access a street. One day, Adam builds a wall between Brent’s property and the path over which Brent is supposed to be allowed to cross, thereby denying Brent access to the path. If this wall stays up for the statutory period of time and Brent brings no legal action to enforce his easement, his easement could be lost by prescription.

Question 24

What is mnemonic for termination of easements?

Answer 24

SURE NAP. Stated condition; unity of ownership; Release; Estoppel; Necessity; Abandonment; Prescription.

Question 25

What is termination by stated condition/expiration?

Answer 25

Amounts to there being a term in the creation of the original easement, the happening of which will cause it to terminate.

Question 26

How does SOF work in context of easement?

Answer 26

SOF required in contracts regarding interests in land. Easements are a non-possessory interest in land so SOF doesn’t apply. Of course, you need a writing to expressly create an easement, but easements can be created in other ways.

Question 27

How do transfers of easements work?

Answer 27

Easements appurtenant pass automatically with the dominant tenement. They also pass automatically with servvient tenement, unless new owner is BFP without notice of hteasement. Easements in gross are not transferrable, unless they are for commercial purposes, such as railroads, telephone lines, electric, etc.

Question 28

What does overburdening an easement mean?

Answer 28

This amounts to a scope issue. If you are an easement holder, you cannot use it more than was originally intended, if such use is unreasonable. So if the easement is for you to walk across the property, and you start letting 30 people do so, then there could be a claim for overburdening. Or if you sell to 5 people.

Question 29

What is a license?

Answer 29

A license is a personal, revocable privilege to enter upon the licensor’s land. SOF doesn’t apply. Cannot be conveyed. Attempted transfer terminates license. Can be revoked at any time by express notice or manifestation of intent. Licensee can surrender privilege as well. License ends with death of licensor. Also, with conveyance of servient t.

Question 30

What is a profit?

Answer 30

A profit is a non-possesory interest involving the right to use the land to remove something from it. The extent and nature of the profit is determined by the words if it is an express grant or the nature of use if it is acquired by prescription. Typcially not revokable until the condition giving rise to it ends – like run out of minerals or it terminates for some other reason. Exclusive holder of a profit may divide it up among others, though might be charged with overburdening. Non exclusive cannot.

Question 31

What is a covenant?

Answer 31

A covenant is a promise to do or not to do something that ocnersn the land. A negative or restrictive cog is a promise to refrain from doing something; a positive or affirmative covenant is a promise to do something. Enforceable by money damages. Generally, the question is whether the covenant runs with the land. That they can do this is what distinguishes these covenants from ordinary contracts which generally bind the parties only.

Question 32

What are the requirements for a creation of a covenant? that runs with the land?

Answer 32

The core issue is whether the transferee knew or should have known about the covenant and it’s fair to bind the transferee to the terms of the covenant, then the burden will run with the land a) must touch and concern the land – that is it must benefit the covenantee and successors in their use and enjoyment of land; b) the parties must intend cov to run with land; c) privity; d) writing; e) transferee OF BURDENED ESTATE must have notice (actual, record, inquiry or imputed) (TIPS)

Question 33

What is horizontal privity?

Answer 33

This is the nexus between the original parties to the covenant – grantor/grantee; LL/T; Mortgagor/mortgagee.

This is the element that is least likely to be satisfied. This element requires that the parties who made up the covenant must have shared some ownership or contractual relationship in the servient land. In other words, the original contracting parties must have shared some level of ownership or control in the land. This could be because the servient land was sold from one party to the other or because one party rented out the servient land to the other party, etc. However, if the two parties who agreed to the covenant were merely neighbors and one of the parties had no ownership interest in the servient land, then the covenant will not run with the land.

Question 34

What is vertical privity?

Answer 34

Nexus between the original party and the successor. Original party must convey entire interest.

Big Bird owns two lots, side by side. He sells one of the lots to Oscar. As part of the sale, the parties agree to a covenant that guarantees that Oscar will not allow garbage to pile up on his land. Later, Slimy acquires the land from Oscar via adverse possession. The covenant will not run with the land. There is no privity between Oscar and Slimy because Oscar never transferred the property to Slimy. Slimy took it via adverse possession.

Question 35

How is intent found IN RUNNING SITUATION?

Answer 35

This is usually satisfied with a term in the covenant that applies the covenant to the “successors heirs and assigns” of the burdened land owner. Even without this provision, such intent will usually be presumed by a court if the circumstances are such that this was the likely intent of the parties and in the absence of evidence to the contrary. Rent is a good example.

Question 36

What is an equitable servitude?

Answer 36

Similar to a convenant in tah tit is a promise convening the land that binds the original parties and their successors. Party seeking relief will ask for injunction, not damages.

Question 37

What are the elements of an equitable servitude that runs with land?

Answer 37

Same as a covenant that runs with land, except, no privity is required. For example, if land acquired by adverse possession, there is no vertical privity, but servitude is steel enforceable if other elements met.

Question 38

What is an implied equitable servitude?

Answer 38

It is also known as a general or common scheme doctrine. A court will often imply an equitable servitude if the builder or developer has a common scheme or plan in place for a subdivision, thus enforcing it on successors.

Example:

Donald buys 100 acres of land with the intent to divide them into lots on which to build single family residences. He divides the property into lots and begins to sell them off, one at a time. At first, he inserts a provision into every deed that requires that the property be used only as a single family residence. However, later on, he forgets to insert this provision into the deed. Sheila buys one of these lots with the provision missing and decides to build an apartment building on her lot. Assuming that Sheila knew or should have known about the original plan, a court would likely infer an implied equitable servitude to prevent Sheila from building an apartment building on her lot.

Question 39

When will ES not be enforced?

Answer 39

a) against public policy; b) plaintiff has acquiesced in similar violations by others; c) estoppel; d) p has laches or unclean hands.

Question 40

How are ES and covenants extinguished?

Answer 40

Same manner as easements and profits.