Nonpossessory Rights in the Land of Another

Question 1

What are the types of nonpossessory rights in land?

Answer 1

Easements, covenants, servitudes and profits

Question 2

What is an easement?

Answer 2

The right to use another’s tract of land for a special purpose without a right of possession.

Question 3

How long are easements presumed to last?

Answer 3

Presumed to have perpetual duration unless grant specifically limits it

Question 4

What are the types of easements?

Answer 4

Easements are

(1) either affirmative or negative
(2) either appurtenant or in gross

Question 5

What are affirmative easements?

Answer 5

Most easements are affirmative. They are the right to go onto the servient land and do something.

Question 6

What are negative easements?

Answer 6

Negative easements are rare and entitle the holder to compel the owner of a servient tenement to refrain from doing something.. HIstorically this was only possible in the categories of light, air, support, and flow of an artificial stream. Now a negative easement is a restrictive covenant

Question 7

What are easements appurtenant?

Answer 7

The holder of the easement is benefited in their physical use and enjoyment of their property. There must be two parcels: the dominant tenement deriving the benefit and the servient tenement bearing the burden.

Question 8

How do easements appurtenant transfer?

Answer 8

Passes with the benefit of the land even if it is not mentioned in the conveyance

Passes with the burden unless the buyer is a BFP without actual or constructive notice of the easement

Question 9

What is an easement in gross?

Answer 9

The holder acquires a right to use the servient tenement without regard to their possession of another tract of land.

Question 10

When are easements in gross transferable?

Answer 10

For an easement for the holder’s personal benefit — not transferable

For an easement for commercial interest, it is transferable

Question 11

How are easements created?

Answer 11

PING

1) Prescription
(2) Implication
(3) Necessity
(4) Grant (express grant or reservation

Question 12

How is an easement created by express grant or reservation?

Answer 12

The statute of frauds requires easements of a duration of more than a year (remember they are presumed to be of perpetual duration!) to be in writing and comply with the formal requisites of a deed. A grantor may also create an easement by expressly reserving the right on conveyance of title

Question 13

How is an easement created by implication?

Answer 13

This is an exception to SOF

It may be implied from existing use (a/k/a quasi-easement) if:

(1) prior to the division of a single tract
(2) an apparent and continuous use exists on the servient part
(3) that is reasonably necessary for the enjoyment of the dominant part
(4) and the court determines that the parties intended use to continue

Question 14

How is an easement created by necessity?

Answer 14

Another version of quasi-easement

Landowner sells a portion of their tract and by this division deprives one lot of access to a public road or utility line

Question 15

How is an easement created by prescription?

Answer 15

Analogous to adverse possession where the use is

(1) open and notorious
(2) adverse
(3) continuous and uninterrupted
(4) for the statutory period

Need not be exclusive, not applicable to public land

Question 16

What is the general scope of an easement?

Answer 16

Absent specific limitation, it is assume that an easement is intended to meet a dominant tenement’s current and future needs. Overuse or misuse does not terminate the easement; the appropriate remedy is injunction against misuse

Question 17

Who bears the duty of repair costs related to use of the easement?

Answer 17

The easement holder if the sole user, apportioned if the use is shared

Question 18

How may easements be terminated?

Answer 18

(1) terms of contract
(2) Merger
(3) release
(4) abandonment
(5) estoppel
(6) prescription
(7) expiration of necessity
(8) condemnation and destruction

Question 19

How is an easement terminated by merger?

Answer 19

If the same person acquires ownership of both dominant and servient tenements, the easement is destroyed and will not automatically be revived if divided again later. To merge, the unity of ownership must be complete (servient tenement must be of equal or longer duration than the dominant)

Question 20

How is an easement terminated by release?

Answer 20

Deed of release from the holder of the easement to the owner of the servient tenement

Question 21

How is an easement terminated by abandonment?

Answer 21

Holder demonstrates by physical action an intent to permanently abandon the easement. Nonuse and expressing a wish to abandon is not enough. Oral expressions plus period of nonuse may be

Question 22

How is an easement terminated by estoppel?

Answer 22

If the owner of a servient estate changes position in reasonable reliance on representations or conduct by easement owner

Question 23

How is an easement terminated by prescription?

Answer 23

Adverse, continuous interruption of the use for a prescriptive period

Question 24

How is an easement by necessity terminated?

Answer 24

When the necessity expires

Question 25

How is an easement terminated by condemnation and destruction?

Answer 25

Condemnation of servient estate extinguishes all easements (easement holder may or may not be entitled to compensation)

Involuntary destruction extinguishes

Voluntary destruction does not

Question 26

What is a license?

Answer 26

A privilege to go on another’s land but unlike an easement is not an interest in land and is revocable at the will of the licensor. Personal to licensee and nontransferable (attempt to transfer results in revocation). A failed attempt at an easement usually results in a license?

Question 27

Under what circumstances does a license become irrevocable?

Answer 27

(1) estoppel — licensee invests substantial amount of money or labor in reliance / becomes an easement by estoppel until licensee gets enough benefit to reimburse efforts
(2) license coupled with interest is irrevocable as long as the interest lasts

Question 28

What are profits?

Answer 28

Entitle the holder of the benefit to take resources like timber, soil or minerals from the servient estate. All accompanied by easement entitling holder to enter the estate to remove the resources. All easement creation, alienation, and termination rules applicable to profits except that profits may be extinguished by surcharge (misuse overburdening the servient estate `

Question 29

What are real covenants and equitable servitudes?

Answer 29

promise to do something or not do something on land. The remedy for RCs is at law (damages) and ESs in in equity (injunction). Determine the difference based on remedy sought

Question 30

How do determine whether a covenant will bind or be enforceable by successors in interest?

Answer 30

Determine whether you are dealing with RC or ES/law or equity

Then determine first the burden side (harder to run than the benefit) then the benefit side

Question 31

What is necessary for the burden of a real covenant to run?

Answer 31

(Does the burden of A’s promise to B run from A to A1)
Writing required (to be enforceable at all)
Intent
Touch and concern
Horizontal privity
Vertical Privity
Notice

Question 32

What is necessary for the benefit of a real covenant to run?

Answer 32

(Does the benefit of A’s promise to B run to B1)
Writing
Intent
Touch and concern 
Vertical privity

Question 33

What is necessary for the burden of an equitable servitude to run?

Answer 33

Intent
Notice
Touch and concern

Question 34

What is necessary for the benefit of an equitable servitude to run?

Answer 34

Intent

Touch and concern

Question 35

What are the types of notice?

Answer 35

Actual
Inquiry (neighborhood visibly conforms to common restriction)
Record (public records should have advised the buyer)

Question 36

What is horizontal privity?

Answer 36

Nexus between original promising parties - they must be in succession of estate (grantor/grantee, landlord/tenant, mortgagee/mortgagor). Must share an interest in lan d independent of the covenant

Question 37

What is vertical privity?

Answer 37

Successor in interest to covenanting party must hold the entire durational interest/nonhostile nexus like a contract, devise or descent

Question 38

What is touch and concern?

Answer 38

Related to parties’ interests in the land

Question 39

How is a covenant terminated?

Answer 39

Written release
Merger of benefited and burdened estates
Condemnation of burdened property
*both RC and ES

Question 40

What are the equitable defenses to enforcement of an equitable servitude?

Answer 40

Unclean hands (person seeking enforcement violating a similar restriction)
Benefited party acquiesced in violation
Estoppel — reasonable person would rely on conduct of benefited party to assume abandonment or waiver
Laches — did not bring in reasonable time
Neighborhood has changed so significantly that enforcement would be inequitable

Question 41

How does a court treat a wall or common driveway between adjoining landowners?

Answer 41

As partially owned by each to the extent it rests on each property.
Implied mutual cross-easements of support (each can use and neither can unilaterally destroy)

Question 42

How are party wall or common driveway agreements created?

Answer 42

Express creation must meet SOF but an irrevocable license can arise from detrimental reliance on parol agreement. Also by implication or prescription

Question 43

When is an equitable servitude implied?

Answer 43

The common scheme doctrine allows the court to imply a reciprocal negative servitude to hold an unrestricted lot holder to an implied restriction if:

(1) when sales of lots began the subdivided had a general scheme of residential development that included the defendant’s lot [common scheme prong]
(2) the defendant lot holder had notice of the promise when it took possession (actual, inquiry, or record)