Servitudes Flashcards
What is an easement?
Nonpossessory interest entitling holder (dominant tenement) to some use of another’s land (servient tenement)
1) Can either be affirmative OR negative
Affirmative: go onto servient land and do something
Negative: bar servient landowner from doing something; ONLY”L-A-S-S” types, which must be in writing/signed…
Light;
Air;
Support (underground);
Streamwater from artificial flow (irrigation)
2) Can either be apurtenant to land OR held in gross
Easement appurtenant to dominant tenement: directly benefits property of dominant tenement (it takes two)
Transfer: passes automatically with land transfer even without mention; except if purchaser of servient land is BFP without notice
Easement in gross: personal pecuniary benefit to holder, NOT land(e.g. put up a billboard; swim in another’s pond). Transfer: NOT transferable UNLESS commercial purpose (e.g. using a lake for fishing to benefit a tuna fish company)
3)Scope of easement: limited to terms of creation; no unilateral expansion
How do you create an affirmative easement?
Under P-I-N-G circumstances…
1) Prescription: acquired because of adverse possession(COAH)
2) Implication: requiring
(i) use that’s apparent; AND
(ii) parties expect survival of easement because it’s reasonably necessary to the dominant tenement’s use/enjoyment
3) Necessity:if grantor conveys landlocked tenement easement will be implied (NOTE: the grantor can CHOOSE where to locate the easement)
4) Grant: An easement that endures for more than 1 year MUST be in writing (to satisfy SOF) that complies with the formal elements of a deed (deed of easement)
** Can and SHOULD be recorded
What are the methods toterminate an easement?
You E-N-D C-R-A-M-P…
1) Estoppel: servient owner detrimentally reasonably relies on dominant owner’s assurance of easement termination
2) Necessity: easement created by necessity ends when necessity ends, UNLESScreated by express grant
3) Destruction of servient land: with no fault of of the servient owner
4) Condemnation of servient land: by eminent domain
5) Release: written release given by the easement to the servient owner
6) Abandonment: the easement holder must demonstrate by affirmative action the intent to never use the easement agains
* * NOTE: Mere NON-USE of the easement is NOT enough to create abandonment; you need an AFFIRMATIVE ACT, showing intent to abandon
7) Merger doctrine (aka unity of ownership): the easement is extinguished when title to easement and title to servient land become vested in the same person (NOTE:remains extinguished even if title is later separated)
* * For merger to apply, both pieces of land must be vested in the same person, in the SAME manner (i.e. NOT fee simple absolute & a life estate)
8) Prescription: interference with easement according action ~ adverse possession
Prescription= C-O-A-H (sans exclusivity requirement)
What is a license?
A mere privilege, freely revocable (unless estoppel applies), to enter land for a delineated purpose (weakest of the servitudes family)
**May or may not be for consideration
Classic cases…
1) Tickets (e.g. movie)
2) Neighbors “taking at the fence”: when oral “easement” violates SOF, becomes license
** Estoppel applies ONLY when licensee has invested substantial money or labor in reasonable reliance
What is a profit?
Name for an easement that entitles holder to enter servient land AND take from the soil
E.g. Minerals, timber, oil
What is a covenant?
A contract limitation/promisere: land, but does NOT grant property interest (like an easement)
** One tract of land is “burdened by the promise and another is benefited”
Two types…
1) Restrictive (Negative) covenant: promise to refrain from doing something related to land (e.g. not build commercial bldg)
2) Affirmative covenant: promise to do something related to land (e.g. maintain a fence)
What is the difference between a covenant and an equitable sevitude?
The type of remedy sought
IF…
1) π seeks monetary damages =covenant
2) π seeks injuction/equitable relief =equitable servitude
When will a covenant “run with the land” (i.e. benefitting successors)?
First analyze BURDEN side then BENEFIT side…
Burden (hard): To run, you’ d need “W-I-T-H-N”…
1) Writing: the original promise has to be in writing 2) Intent: original parties intended covenant to run 3) Touch & concern land * * The promise must affect the parties' legal relations as landowners (and NOT simply as members of public at large) 4) Horizontal AND vertical privity * * Horizontal privity refers to the nexus between the orginal parties A & B requiring that they'd be in sucession of estate (i.e. grantor-grantee; landlord-tenant; mortgager-mortgagee) * * HARD to establish * * Vertical privity refers to nexus between A & A-1, which requires some non-hostile nexus (i.e. contract, devise, descent, but NOT adverse possession) 5) Notice: burdened present party must have notice of promise when he took land (record/constructive)
Benefit (easy): To run, you’d need “W-I-T-V”…
1) Writing 2) Intent 3) Touch and concern land 4) Vertical privity(ONLY)
What is an equitable servitude?
A promise concerning land that EQUITY will enforce against successors (accomplished by injunctive relief)
How do you create an express equitable servitude?
To create an equitable servitude that will BIND successors, there must be “W-I-T-N-E-S”…
1) Writing: orginal promise was in writing
2) Intent: original parties intended for promise to run and bind successors
3) Touch and concern the land: the promise must affect parties as landowners
4) Notice: the assignee of burdened land had notice of promise
5) Equitable
6) Servitude
** PRIVITY is not necessary!
What is the general or common scheme doctrine?
NOTE: NY Distinction
Creates an IMPLIED equitable servitude in a subdivision where the court will IMPLY a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant
To enforce an implied covenant on unencumbered land, MUST SHOW…
1) Subdivider had general development scheme embodied in deed restriction
2) Purchaser of lot had notice of restriction (A-I-R)
Actual notice: ∆ had literal knowledge
Inquiry notice: development obviously conforms
Record notice: imputed to buyer who doesn’t check publicly recorded documents (**NOT NY)
Changed condition = a defense = pervasive change of conditions to ENTIRE area/subdivision (NOTE: mere pockets of limited change is NOT sufficient)
What is adverse possession?
Possession, for a statutorily prescribed period of time, can, if certain elements are met, ripen into TITLE
What are the elements of adverse possession?
NOTE: NY Distinctions
C-O-A-H…
1) Continuous: uninterrupted for thestatutory period
NY DISTINCTION: Statutory period = 10yrs
NOTE: A tenant in common in exclusive possession requires 20 yrs to adversely possess
2) Open and notorious:type of possession the owner wouldmake
3) Actual and exclusive POSSESSION: it’s got to be a LITERAL entry that’s EXCLUSIVE
4) Hostile: the possessor doesn’t have owner’s PERMISSION to be there (in MBE, subjective state is irrelevant)
NY DISTINCTION: subjective intent matters; good faith adverse possessors only
What is tacking?
One adverse possessor may “tack” on his time with the land his predecessor’s time, SO LONG AS there is privity, which is satisfied by ANY non-hostile nexus (i.e. blood, K, deed, will)
** Tacking is NOT allowed when there is ouster
How can an owner’s disability affect adverse possession?
The SOL on an adverse possession claim will NOT run against a true owner who is afflicted by a disability (i.e. infancy, insanity, imprisonment) AT THE START of the adverse possession
