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Private use agreement



Grant of a non-possessory interest that entitles its holder to some limited used of another land called the servient tenement.
Ex. Giving right away, laying lines


Dominant estate

Estate that benefits from the easement


Servient estate

Burdened by the easement


Affirmative easement

Right to do something on another land.


Negative easement

Entitles its holder to compel servient owner to refrain for doing something that but for neg. easement would be permissible.
• Authorizes holder to prevent someone from doing something on their land
• Ex. Refrain from building something that would block my view, refrain neighbor from
• Negative easement can only be created expressly (signed writing).


Appurtenant easement

When it benefits its holder of his physical use and enjoyment of his property.
• Benefits the holder in use of the dominant estate
• 2 parcels must be involved, dominant and servient
• A grants B a right of way to the road across A’s land, A’s land is serving B’s easement.
o B’s land is getting a benefit – dominant tenement
• B has a easement relevant to B’s use and enjoyment of B’s own land
• Passes automatically with the dominant tenement, regardless of it if is mentioned
• Burden will pass with servient land as well


Easement in gross

Only a personal or financial benefit not linked to easement holder use and enjoyment or easement holder’s own land.
• Benefits holder personally, benefit not linked to an estate
• Only one parcel is involved
• Ex. Right to place a billboard on another lot, right to swim in another’s pond, right to lay utility lines on another land
• Servient land is burdened
• Not transferable, unless they are for commercial purposes



Profit: Right to access another property and take specific resources
License: Revocable right to use another’s land
• Ex. Plumber has license to enter, ends when work is done


How to create an easement

Express easement: In writing
Implied easement
-Prior use
- easement by estoppel
- Implied by necessity
- Easement by prescription


a. Easement by estoppel

estop the owner of the property from revoking the license usually because of reliance and improvements made on property.


b. Easement by Prior Use:

Land was united by a common owner (A), owner was using the land to benefit another and then A sells land to B, A can continue use if…
i. Continuous
ii. Apparent
iii. Necessary


c. Implied by necessity

-united tract is divided so as to deprive access to a road
i. Strictly necessity- only way to get to the road


d. Easement by prescription

easement by adverse possession


1. Willard v. 1st Church of Christ, Scientist

Old Law vs. New Law – Modern law allows EApp to be vested in 3rd parties, balancing equitable and policy considxn


2. Holbrook v. Taylor

EApp may be created thru openly, peaceably, continuously, and under a claim of right adverse to LO. License -> E by Estoppel created if Pl can show usage, maintenance, investment, and consent (or lack of objection)


3. Other v. Rosier

Implied E of Necessity. Pl must show (1) unity of ownership, (2) E is nec, and (3) the nec existed at time of severance of two estates (the severance created the nec.)
a. E by Nec only exists so long as necessity exists.
b. Diff from E by Prior Use bc it continues beyond nec.


Assigning an easement

• Miller v. Lutheran Conf. & Camp Assoc. – (1) EIG are assignable/divisible. (2) Open, adverse usage of lake created EIG by Rx (not belonging to ownership of land). (3) Divisible EIG create co-owners (like TiC), and may only divide proceeds, not rights. Therefore, one co-owner may not interfere w/ the Rts of another co-owner.


Scope of easement

• Intent of grantors
• Use substantially burdens easement- beyond what the parties intended
• Someone making an apartment complex where a one family home used to be - too many cars passing through the road, not in line with the original purpose
• If change in use was foreseeable then its acceptable
• Brown v. Voss: An easement appurtenant to an estate may not be extended to other adjoining estates
o B has easement to use A to get to road, B buys C, attached to B, cannot use the same easement to get to C.


Termination of easement

• Express release
• Expiration- naturally termination
• Merger- if both dominant and servient land come under the same owner – A buys B’s land
• Abandonment (estoppel): If holder does some act to abandon easement and serviant tenant relies on the abandonment detrimentally
o B says she found another way to get to the road, A makes a basketball court detrimentally relying on it
• Add in Marvin M. Brandt Revocable Trust v. United States


• Real covenant

runs with land, enforceable through law


• Equitable servitude

runs with land enforceable in equity
Less ridged version of RC


• Horizontal Privity

successive relationship between the original contracting parties to the promise- Grantor/ Grantee


• Vertical Privity-

successive relationship between original parties and their successors
o If there is not transfer between B and C then there is no VP (adverse possession)


• Real Covenant 5 elements to make it run

oWriting- has to be in statute of frauds
oIntent- intend for it to run, implied intent from circumstances or explicit language
oTouch and concern – promise has to effect both parties of the agreement
• For ex. It can Burden A, benefit B
oNotice- if you are running a burden, successor must be on notice
oPrivity (Run Burden)
•Horizantal privity is needed
•Vertical privity- strict vertical privity
•Successor must succeed to the same exact estate
oPrivity (Run Benefit)
•Relaxed vertical privity
•Same estate or lesser estate that is carved out of predecessors estate
•A had a fee simple absolute, did not give B the whole thing


• Equitable Servitude (easier standard to meet)

o Intent
o Touch and concern
o Notice of burden
o Tulk v. Moxhay: One who purchases property with knowledge of restrictive covenants burdening the land must honor the covenant.
o Neposit property owners association v. Emigrant Industrial savings Bank
• – Cov must T&C land. Privity exists for assoc. intended to advance common interest. In this case they determined T&C bc RC effected everyone’s common enjoyment of the easement


• Termination of covenant

o Doctrine of changed circumstances
o The covenant is no longer serving its purpose due to changed circumstances.
o Western Land Co. v. Truskolaski
• Changed circ must be sub to void cov. Cts determine whether restrictive cov still has value for the P involved.


• Creation of covenants

o Sanborn v. McLean
• If a bunch of lots were owned by the same person and he put restrictions on most the lands, the restriction also applies to the few lands he did not include bc purchaser should’ve noticed the pattern among the houses.
• Implied notice specific to reciprocal negative Cov was created when P had chance to notice uniformity of neighborhood and realize the common gen req for residential purposes


• Common Interest Communities

o Nahrstedt v. Lakeside Village
• California law provides that common interest development use restrictions are enforceable unless unreasonable.
• Condominium rules generally are given a presumption of validity and will be enforced unless unreasonable, or if they are unconstitutional or against public policy.
• Cat case