Rules Regulating Private Agreements about Land Use

Question 1

what is a servitude

Answer 1

right or obligation that runs with the land

Question 2

what is an affirmative servitude

Answer 2

rights to use another’s land for limited purpose

Question 3

what are affirmative servitudes called

Answer 3

easements

Question 4

what’s the most common type of easement

Answer 4

right of way (ingress/ egress)

Question 5

how are easements created

Answer 5

express agreement between owners of burdened and benefited land

Question 6

what are negative servitudes

Answer 6

restrictions on what owners can do with their land

Question 7

what are some other names for negative servitudes

Answer 7

negative easements, real covenants, equitable servitudes

Question 8

how are negative servitudes created

Answer 8

can ONLY be created expressly

Question 9

what 3 kinds of negative easements are generally allowed

Answer 9

light, air, support, stream

Question 10

what is the burdened/ servient estate

Answer 10

the estate that GAVE the easement, serves the other estate

Question 11

what is the benefited/ dominant estate

Answer 11

the estate that GETS the easement, dominates the other one

Question 12

what is an appurtenant easement

Answer 12

easement that attaches to the land - whoever owns the land has the easement

Question 13

what is an in gross easement

Answer 13

easement that attaches only to a specific person/ entity, not the land

Question 14

what 3 things does the easement need to run with the land

Answer 14

writing
notice (actual, constructive, inquiry)
intent

Question 15

is an appurtenant easement transferable

Answer 15

yes, when the land is sold, new owner gets easement

Question 16

is an in gross easement transferable

Answer 16

modern - yes as long as grantor intended it to be transferable and it won’t cause an undue burden on servient

traditional - yes for commercial, not for personal convenience or enjoyment

Question 17

what are the kinds of notice

Answer 17

actual
inquiry - reasonable person would investigate further based on visible signs
constructive - reasonable search of registry, should’ve known

Question 18

what 3 issues come up for scope of easements

Answer 18

• whether the use is of a kind contemplated by the grantor
• whether the use is so heavy that it constitutes an unreasonable burden on the servient estate
• whether easement can be subdivided

Question 19

can an appurtenant easement be subdivided

Answer 19

most courts say yes, and benefits of the easement move to each portion

Question 20

can an in gross easement be subdivided

Answer 20

restatement third says yes unless contrary to the intent of OG parties or undue burden on servient

(old rule: not for personal)

Question 21

how are easements created

Answer 21

P - prescription
I - implication
N - necessity
G - grant

Question 22

what is a grant

Answer 22

express written easement (just regular)

Question 23

what are the elements of easement by prescription

Answer 23

1. use
2. open and notrious
3. exclusive –> MAJORITY DROPS
4. continuous
5. hostile
6. for the statutory period

Question 24

what is the majority rule for hostility for prescriptive easements

Answer 24

in absence of evidence for permission, courts assume there was none

Question 25

what can’t be created by prescription

Answer 25

a negative easement

Question 26

how is AP different than PE

Answer 26

prescription ONLY results in right to continue the kind and mount of USE that was permitted during the statutory period

Question 27

when does an implied easement come up

Answer 27

• was unity
• servient was used to the benefit of the dominant in apparent and continuous way
• the use is reasonably necessary for enjoyment of dominant

Question 28

what does ‘reasonably necessary’ for enjoyment of dominant estate mean in implied easement

Answer 28

more convenient = low bar

Question 29

how do you assess whether there was intent for an implied easement

Answer 29

was the use sufficiently apparent and significant to the enjoyment of the dominant that the parties likely believed it was part of the bargain?

Question 30

when does necessity come up

Answer 30

• was unity

- at time of several, dominant becomes landlocked and right of access is justified by strict necessity

Question 31

how do you end an easement

Answer 31

• agreement in writing
• on its own terms
• merger
• abandonment
• AP or PE
• frustration of purpose (traditionally not allowed, very minority)

Question 32

what is a covenant

Answer 32

literally just a contract regarding land

Question 33

are most covenants affirmative or restrictive

Answer 33

restrictive

Question 34

how do you know if it’s a covenant or equitable servitude

Answer 34

π is seeking money damages –> covenant

π is seeking injunction –> equitable servitude

Question 35

do covenants run with the land

Answer 35

yes if WITHN
W - writing
I - intent
T - touch and concern (or modern)
H - horizontal + vertical privity
N - notice

Question 36

what is traditional and modern take on touch and concern

Answer 36

trad - does subject of the covenant affect the land

modern + rst 3: enforceable unless unreasonable (shifts burden to party challenging covenant to show it’s unreasonable)

Question 37

what are the factors to judge reasonableness of a covenant under the modern touch and concern test

Answer 37

it’s enforceable if it

• isn’t arbitrary/ spiteful
• doesn’t burden constitutional rights
• doesn’t restrain alienation
• isn’t against public policy

Question 38

which requires privity - covenant or equitable servitude

Answer 38

covenant

Question 39

what kinds of notice could be used for covenants

Answer 39

actual, inquiry, constructive

Question 40

what is the narrow and broad approach for constructive notice in covenants

Answer 40

narrow - only need to look at chain of title for your parcel

broad - need to look at titles of every parcel that grantor had at time they had your parcel

Question 41

what is an equitable servitude

Answer 41

a promise regarding land that equity will enforce against successors (injunctive relief)

Question 42

what do you need to make an equitable servitude

Answer 42

W - writing
I - intent
T - touch and concern (or modern)
N - notice
ES - equitable servitude (no privity needed)

Question 43

what’s another word for common scheme doctrine

Answer 43

implied equitable servitude

implied reciprocal negative servitudes

Question 44

when does a common scheme situation arise

Answer 44

subdivision – A sells a bunch of lots with restrictions, forgets to include it in some later ones

Question 45

what are the two elements of common scheme doctrine

Answer 45

1. when the sales began, the subdivider had a general scheme which included ∆’s lot
2. ∆, holder of the unrestricted lot, had notice of the restrictions the rest of the neighborhood was under

Question 46

what kind of notice counts for common scheme

Answer 46

actual, inquiry, or constructive (narrow or broad)

Question 47

what factors might a court consider to imply a common scheme

Answer 47

1. presence of uniform restrictions in all or most deeds to similarly situated lots in area
2. presence of restrictions in last deed

Question 48

what times are common plans for

Answer 48

when you have a

• privity problem (early buyers can’t enforce against later buyers)
• notice problem

Question 49

what are reasons not to enforce covenants

Answer 49

changed conditions
relative hardship
acquiescence
unclean hands
abandonment
estoppel
laches
expiration