Servitudes

Question 1

What are examples of nonpossessory interests in land that create a right to use land possessed by someone else?

Answer 1

easements, profits, covenants, and servitudes

Question 2

What is an easement?

Answer 2

an easement holder has the right to use another’s tract of land for a special purpose (to lay a pipe, access road, etc), but has no right to possess or enjoy that land (presumed to be of perpetual duration)

Question 3

What are the different types of easements?

Answer 3

affirmative, negative, appurtenant, and in gross

Question 4

What is an affirmative easement?

Answer 4

holder is entitled to make affirmative use of the ST

Question 5

What is a negative easement?

Answer 5

entitle holder to compel the possessor of ST to REFRAIN from engaging in an activity on the servient estate (historically: for light, air, subjacent support, and flow of artificial stream); today = restrictive covenants

Question 6

What is an easement appurtenant?

Answer 6

when the ease. benefits the holder in his physical use or enjoyment of another tract of land; need two tracts of land (dominant and servient)

Question 7

What is the servient tenement?

Answer 7

the estate BURDENED by the easement

Question 8

What is the dominant tenement?

Answer 8

the estate BENEFITTED by the easement

Question 9

Does an ease. app. pass w/ the transfer of the benefitted land?

Answer 9

Yes, it does not need to be mentioned in the conveyance

Question 10

Does the burden of the easement also pass w/ the servient estate (app)?

Answer 10

Yes, unless new owner is a BFP w/ no actual or constructive notice of the ease.

Question 11

What is an easement in gross?

Answer 11

holder of this easement acquires right to use the ST (has nothing to do with another parcel of land; not two tracts); benefits the holder rather than the parcel (right to swim)

Question 12

Is an ease. in gross transferable?

Answer 12

No; however, one that serves an economic or commerical interest (right to erect Billboard) is transferable (personal ones are not)

Question 13

What are the methods of creating an easement?

Answer 13

Prescription, express grant or reservation, implication, and necessity

Question 14

How do you create an ease. by express grant?

Answer 14

1. needs to be in writing; 2. signed by holder of ST (unless duration is brief, 1 year or less, to be outside SOF); and 3. must comply w/ formal req. of deed

Question 15

How do you create an ease. by express reservation?

Answer 15

arises when grantor conveys title to land but reserves the right to continue to use the tract for a special purpose (cannot reserve for someone else = void)

Question 16

How do you create an ease. by implication?

Answer 16

Created by op. of law = exception to SOF; there are three kinds of ease. by implication

Question 17

Ease by implication: Implied from existing use

Answer 17

Implied if: 1. prior division of a single tract; 2. apparent and cont. use exists on servient part; 3. reasonably necessary for enjoyment of dominant part; and 4. ct. determines parties intended use to cont. after division

Question 18

Ease by implication: implied w/o existing use

Answer 18

arises in two situations: 1. subdivision plat (lots sold in sub in ref. to plat showing streets leading to lots = buyers of lots have impl. ease. to ues streets); 2. profit a pendre (holder of profit has imp. ease to pass over surface of land and use it to extract product)

Question 19

Ease by implication: necessity

Answer 19

landowner sells portion of land and by division deprives one lot of access to a public road or utility line

Question 20

How do you create ease. by prescription?

Answer 20

Similar to acquiring prop. via adverse possession; the use must be: 1. open & not (discoverable upon inspection); 2. adverse (no permission); 3. cont. and uninterrupted; and 4. for statutory period

Question 21

What is the scope of an easement?

Answer 21

courts assume ease. was intended to meet both present and future needs of DT (could be widened); but enlarging scope cannot unreasonably burden ST

Question 22

Does overuse or misuse of ease. terminate it?

Answer 22

No - the appropriate remedy is an injunction against that misuse

Question 23

Does the owner of ST have a duty to make repairs to ease?

Answer 23

Yes if sole user; no if both parties are using - ct will apportion repair costs

Question 24

How do you terminate an easement?

Answer 24

1. based on stated conditions; 2. merger 3. release 4. abandonment 5. estoppel 6. prescription 7. necessity 8. condemnation/destruction

Question 25

How does an ease. terminate under merger?

Answer 25

same person acquires ownership of easement and ST, DT and ST merge; even there is a later separation, the ease. does not auto. revive

Question 26

How does an ease. terminate under release?

Answer 26

by deed of release from owner of easement to owner of ST expression in writing

Question 27

How does an ease. terminate under abandonment?

Answer 27

holder demonstrates by physical action (building a structure that blocks access to ease) an intent to permanently abandon the ease; merely expressing wish to ab. is not enough, neither is nonuse; oral expressions combined w/ long period of nonuse may be sufficient so expression + physical action

Question 28

How does an ease. terminate under estoppel?

Answer 28

if owner of ST changes position in reasonable reliance on representations made or conduct by ease. holder

Question 29

How does an ease. terminate under prescription?

Answer 29

must be adverse, cont. interruption of use for prescriptive period (gen. 20 yrs)

Question 30

How does an ease. terminate under necessity?

Answer 30

when need expires, so does the ease.

Question 31

What is a license?

Answer 31

privilege to go upon land of another; not an interest in land

Question 32

Is a license revocable?

Answer 32

yes, at will of licensor; licenses are inalienable - if you try to transfer, revoked only irrevocable if 1. estoppel (licensee invests subs. amt. of $ or labor in reliance on license = could become ease by estoppel) or 2. license coupled w/ interest

Question 33

What is created by failed attempted to create an easement?

Answer 33

license (e.g. grantor orally grants ease. for more than a year = not in writing, so no a valid ease, but is a license)

Question 34

What is a profit?

Answer 34

entitles holder of benefit to take some resources (soil, timber, materials, fish) from ST; all rules governing ease. govern profits

Question 35

How can a profit be extinguished?

Answer 35

through surcharge = misuse that overly burdens ST

Question 36

What is a covenant?

Answer 36

normally found in a deed, a written promise to do something on the land (maintain a fence) or a promise not to do something (not build a multifamily dwelling)

Question 37

What does it mean for a covenant to run w/ the land at law?

Answer 37

subsequent owners may enforce or be burdened by the covenants

Question 38

(COV - BURDEN TO RUN) For a successor-in-interest to the burdened estate to be bound by the covenant (as if she had expressly agreed to it), need:

Answer 38

1. intent; 2. notice; 3. HP; 4. VP; and 5. T&C intent: covenanting parties must have intended that successors be bound (usually found in language) notice: subsequent purchaser for value must have had actual, inquiry, or record notice of the arrangement at time of purchase HP: when promisor entered into cov. w/ promisee, the two had a shared interest in land independent of cov. (grantor-grantee, LL-T, etc.) VP: successor in interest to the covenanting party must hold the entire interest held by the covenanting party T&C: neg. covs. T&C if they restrict holder of ST in use of that parcel; aff. covs. T&C if they require hodler of ST to do something otherwise not obligated to do

Question 39

(COV - BENEFIT TO RUN) need the following to be met for promisee's successor in int. to enforce the covenant:

Answer 39

1. intent; 2. VP; 3. T&C VP: benefits of a cov. run to the assignees of orig. estate or any lesser estate (any succeeding possessory estate may enf. the benefit) *NOTE: HP is not required for benefit to run. Thus, where HP is lacking, the promisee's succ. can enf. the cov. against the promisor, but not the promisor's successors T&C: if promised performance benefits the covenantee and her succ. in their use and enjoyment of benefitted land.

Question 40

Do promises to pay money to be used in connection w/ land (HOA fee) and cov. not to compete run w/ land?

Answer 40

Generally, yes (racially rest. cov. are unenf.)

Question 41

What is the remedy for the breach of a cov?

Answer 41

award of money damages (if an injunction is sought = promise may be enf. by equitable servitude)

Question 42

How can a covenant be terminated?

Answer 42

1. written release; 2. merger of benefit/burdened estate; 3. condemnation of burdened prop.

Question 43

What is an equitable servitude?

Answer 43

covenant that, regardless of whether it runs w/ the land at law, EQUITY will enforce against assignees of burdened land who have NOTICE of the cov.

Question 44

What is the usual remedy for equit. serv.?

Answer 44

injunction

Question 45

Can a single promise create both a cov. and equit. serv?

Answer 45

yes - the main difference is in remedy sought ($ or inj)

Question 46

How is an equitable servitude created?

Answer 46

Generally, writing that satisfies SOF, but one exception: negative equitable servitudes (implied from common scheme or development of res. subdiv).

Question 47

What happens when developer subdivides land and some deeds contain neg. covs. and others don't?

Answer 47

Neg. covs. will be binding on all parcels if there was a common scheme and notice of the covs.

Question 48

How do you show common scheme for reciprocal neg. servs.?

Answer 48

implied only if at time that sale for subdivision began, developer had plan that all parcels would be subj to same restriction -- shown by 1. recorded plat; 2. general pattern of restrictions; or 3. oral representations to early buyers

Question 49

What happens if the scheme arises after some lots are sold?

Answer 49

no implied servitude can arise with those already sold w/o express covenants (Lots 1-5 sold w/o restrictive cov; 6-50 contain one = cov cannot be enf. as servitude against owners of 1-5)

Question 50

How do you show notice (to be bound by cov. not in deed)?

Answer 50

grantee must have notice of cov. in deeds of others in the subdivision -- through actual (direct knowledge); inquiry (neighborhood appears to conform to common restrictions); or record (prior deed w/ cov in grantees chain of title)

Question 51

Do you need privity to enforce an equit. serv?

Answer 51

no (neither HP or VP for es to be enf. by and against assignees)

Question 52

What are the requirements for the burden of servitude to run?

Answer 52

1. intended to run by covenanting parties; 2. successor of promisor has actual, inquiry, or record notice of servitude; 3. cov. T&C land (restricts ST)

Question 53

What are the requirements for benefit of servitude to run?

Answer 53

1. intended by orig. parties (and thus enf. by promisee's successors); 2. T&C benefitted property

Question 54

What are the equitable defenses to enf. of equitable servitude?

Answer 54

ct. will not enf. ES if 1. unclean hands (person seeking enf. is violating similar restriction on own land) 2. benefited party acquiesced in violation of serv. by one burdened party; 3. benefited party acted in way that a reasonable person would believe the cov. was abandoned (estoppel); 4. benefited party fails to bring suit w/in reasonable period (laches); or 5. neighborhood has changed so significantly that enf. would be inequitable

Question 55

How can an equitable servitude be terminated?

Answer 55

1. written release by benefit holders; 2. merger of lands; or 3. condemnation