Easements, Profits, Covenants, and Servitudes Flashcards
What are the different types of affirmative easements? How are they created and which parties are bound?
Remember PING!
Prescription: an easement from use that is continuous, open and notorious, actual under a claim of right that is hostile for the required statutory period.
Note: permission defeats the acquisition of an easement by prescription.
Implication: implied from prior use; at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended.
Necessity: division of a tract deprives one lot of means of access out.
Grant: writing signed by grantor
The parties bound depend on the type of easement:
Easement appurtenant is transferred automatically with the dominant tenant.
Easement in gross for commercial purposes is assignable.
What are the different types of negative easements? How are they created and what parties are bound?
The negative easements are (think of LASS): light, air, support, and streamwater from an artificial flow. Negative easements can only be created expressly by writing signed by the grantor. There is no natural or automatic right to a negative easement.
The parties bound depend on the type of easement:
Easement appurtenant is transferred automatically with the dominant tenant.
Easement in gross for commercial purposes is assignable.
What is an easement appurtenant?
The easement is appurenant when it benefits its holder in his physical use or enjoyment of his property. If there are two parcels of land, a dominant tenement (which receives the benefit) and the servient tenement (which suffers the burden), then you have an easement appurtenant.
What is an easement in gross?
The easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of the land. Here, servient land is burdened, but there is no benefited or dominant tenement. There is only one parcel involved.
How is the scope of an easement set?
By the terms that created it.
When can a termination of an easement happen?
Remember END CRAMP!
- Estoppel: the servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced.
- Necessity: Easements created by necessity expire as soon as the need ends. However, if the easement, attributable to necessity, was nonetheless created by express grant it won’t end when the need ends.
- Destruction of the servient land: other than through willful conduct of the servient owner ends the easement.
- Condemnation of servient estate: by eminent domain ends the easement.
- Release: A written release, given by the easement holder to the servient owner.
- Abandonment: The easement holder must demonstrate by physical action signifying the holder’s intent to never using the easement again. Mere nonuse, or mere words, are insufficient to terminate by abandonment.
- Merger doctrine: also known as unity of ownership - the easement is extinguished when title to easement and title to servient land become vested in the same person.
- Prescription: The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. Remember COAH - continuous interference, open and notorious, actual use, hostile to the easement holder.
What is a license? Are they subject to the Statute of Frauds?
A license is a mere privilege to enter another’s land for a specified purpose. They are informal, fully and freely revocable, at will of the licensor, unless estoppel creates bar to revocation.
Licenses are not subject to Statute of Frauds, so you do not need a writing to create a license.
What are some of the classic license cases?
- Ticket cases - tickets create a freely revocable license.
- Oral easements - becomes a freely revocable license.
When will estoppel apply bar revocation of a license?
Estoppel will apply to bar revocation only when the licensee has invested substantial money, labor, or both in reasonable reliance on the license’s continuation.
What is the profit?
The profit entitles its holder to enter the servient land and take from it: soil or some substance of the soil (i.e. extract oil, minerals, or water). The profit shares all the rules of easements.
What is a real covenant?
The covenant is a promise to do or not do something related to land. It is unlike the easement because it is not the grant of a property interest, but rather a contract or promise regarding land.
Most covenants are negative (also known as restrictive covenants), which is the promise to refrain from doing something related to land.
In covenant parlance, one tract is burdened by the promise and another is benefited.
What are the requirements for a real covenant’s burden to run?
Remember WITHN!
Writing: original promise was written.
Intent: original parties intended that covenant would run. (Courts are generous in finding the requisite intent)
Touch and Concern the Land: The promise must affect the parties’ legal relations as landowners, and not simply as members of the public at large.
Horizontal and vertical privity: Both are needed to for the burden to run.
Notice: there is notice of the promise.
What are the requirements for the benefit to run?
Remember WITV!
Writing: original promise was in writing.
Intent: original parties intended the benefit would run.
Touch and Concern: promise affects the landowners
Vertical Privity: non-hostile nexus between the original benefited owner and the new owner.
What is horizontal and vertical privity?
Horizontal privity requires that they be in succession of estate, meanin that they were in a grantor/grantee, landlord/tenant, or mortgage/mortgagor relationship.
NOTE: Horizontal privity is hard to establish - its absence is likely to be the reason for why the burden won’t be able to run.
Vertical privity refers to the nexus between original and successive owners. It simply requires some non-hostile nexus, such as contract, devise, or descent. The only time that vertical privity will be absent is if the successive owner acquired her interest through adverse possession.
What is an equitable servitude?
The equitable servitude is a promise that equity will enforce against successors. It is accompanied by injunctive relief.
