Servitudes Flashcards
Easement
Grant of nonpossessory property interest entitling holder to use/enjoyment of another’s land.
• Servient estate = burdened land
• Dominant estate = benefited land (not always applicable: easements in gross)
An Easement can be Appurtenant or in Gross:
• Easement Appurtenant — benefits holder in use/enjoyment of own land
» Two parcels
1. Dominant: Derives benefit
2. Servient: Bears burden
• Easement in Gross — holder has personal/commercial advantage unrelated to use/enjoyment of land
» servient land burdened
» no benefited/dominant tenement
Easements are Affirmative or Negative:
• Affirmative easement: Right to go on to and do something on another’s land
• Negative easement: Right to prevent landowner from doing something (light, air, support, stream water from artificial flow)
» can be created only expressly
Creation —easements may be created by prescription, implication, necessity, or expressly by grant or reservation (PING).
Scope of Easements
An easement’s scope is determined by the terms or conditions that created it
• In interpreting an easement’s scope, courts will consider the reasonable intent of the original parties
Expansion
• Easement holders cannot unilaterally expand the scope of their easement (e.g., through overuse or misuse)
» Overuse or misuse of an easement does not terminate the easement
• Remedy for violation = injunction or damages
Duty to repair
• Easement holder has a duty to make repairs if he is the sole user
• If both the servient landowner and the easement holder use an easement, the repair costs are apportioned
Express Easement (Easement by Grant or Reservation)
Easements may be expressly created by grant or reservation
Grant—an express grant of the easement
• Created by instrument (e.g., written agreement) in which the servient estate owner gives easement to owner of dominant estate
Reservation—grantor conveys title to land but reserves the right to continue using the land for a designated purpose
• Grantor may only reserve an easement for himself
» Void if reserved for the benefit of another
• E.g., O conveys property to A, reserving an easement allowing access to a path across the property
Requirements—express easements must be:
1. In writing (otherwise will violate SoF); and
2. Signed by the servient estate holder
Easement by Prescription
A process of acquiring an easement; similar to acquiring title by adverse possession.
Requirements—acquirer’s use of another’s land must be:
1. Continuous—for the applicable statutory period
2. Open and notorious—owner knows or should know of use
3. Actual
4. Hostile—without owner’s permission
Note—an easement can also be terminated by prescription if the servient landowner interferes with the easement sufficiently to satisfy the above requirements.
Easement by Implication
An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots
Requirements:
1. Easement exists prior to division of a single tract of land;
2. Common grantor’s use is continuous and apparent;
3. Use is reasonably necessary for enjoyment of the dominant tenement; and
4. Parties intended the use to continue after division of the land
Exceptions—easement may be implied without prior use where:
a. Subdivision plat—lots in a subdivision are sold with reference to a map plan, or
b. Profit à prendre—holder of a profit à prendre has an implied easement to pass over the land’s surface as reasonably necessary to extract materials (e.g., wood, coal)
Easement by Necessity
An easement can arise if access to or from a property is impossible without the easement (i.e., the easement’s existence becomes necessary)
Creation — usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to a public road or utility
• The owner of the servient estate can choose a reasonable location for the easement
Termination — expires automatically when the necessity ends
Negative Easements
Entitles the holder to prevent the servient landowner from engaging in otherwise permissible actions on his own land
Four categories of acts may be prevented:
1. Light
2. Air
3. Subjacent or lateral support
4. Stream of water from an artificial flow
Creation—can only be created by express grant (writing signed by grantor)
Note—restrictive covenants are utilized more frequently than negative easements to prevent a landowner from engaging in certain activities on their land
Termination of Easements
Easements may be terminated in any one of the following ways: (END CRAMP)
- Estoppel —where servient owner reasonably relies on an easement holder’s conduct or representations indicating an intent to abandon the easement; non-use is insufficient.
- Necessity ends —easements by necessity expire when the need that created them ends.
- Destruction of servient tenement —unless destruction results from willful conduct of the servient owner.
- Condemnation of servient tenement.
- Release —easement holder can terminate the easement by giving a deed of release to the servient tenement owner.
- Abandonment — easement is terminated if its holder physically demonstrates an intent to permanently abandon it.
» Mere words or non-use are insufficient. - Merger — easement terminates automatically if one person acquires title of both the easement and the servient land.
» Re-dividing the merged title will not revive easement. - Prescription —servient owner may extinguish an easement by interfering with it using elements of adverse possession.
Licenses
License—a right to use another person’s (licensor’s) land, which is revocable at the licensor’s will
• E.g., oral permission for neighbor to use licensor’s pool, theater tickets (grant a license to ticket holders), right to use a parking lot
• Not an interest in land—license is a privilege, not an interest in land (distinguish from affirmative easement)
• Revocable—licensor may revoke the privilege at any time, unless estoppel applies
• Inalienable—may not be assigned or transferred
Any attempt to do so revokes the license
• No SoF requirement—a license may be oral or written; they can result from easements that are invalid under the SoF
» E.g., an oral grant of a permanent easement between neighbors may result in a license b/c SoF not satisfied
Profits
A non-possessory property interest entitling its holder to enter a servient estate to remove resources (e.g., minerals, timber, soil, fish)
• All rules governing easements apply to profits (i.e., creation, transferability, and termination)
• Extinguishment—a profit may be extinguished through misuse or overuse of resources on the servient estate
Covenants
A promise to do or refrain from doing something related to land
• A contractual limitation or promise regarding land
• Note—covenants are not property interests
Real covenant—a covenant concerning real property
• Runs with the land at law—subsequent owners may be burdened by the covenant or may enforce it
» Different requirements apply for burdens and benefits running with the land
• Affirmative covenant—a promise to do something related to land
• Restrictive covenant—a promise to refrain from doing something related to land
Covenants vs. equitable servitudes—difference is the remedy
• Covenant—money damages
• Equitable servitude—injunction
Requirements for Burdens of Covenant to Run With Land
A successor in interest to the burdened estate will be bound by a covenant if the requirements below are satisfied
Requirements:
1) Writing—original covenant was in writing
2) Intent—parties intended to bind successors in interest
» Look to language of the covenant; courts are liberal in construing requisite intent
3) Touches and concerns the land—covenant must affect parties’ legal relations as landowners (a very low standard)
» Homeowner association fees satisfy this requirement
4) Horizontal and vertical privity—must exist between interested parties
» Horizontal privity—relationship between the covenanting parties (e.g., grantor/grantee, landlord/tenant, fee ownership/easement right in same land, mortgagor/ mortgagee)
» Vertical privity—relationship between covenanting parties and their successors in interest (e.g., contract, devise, descent)
5) Notice—successor in interest had notice of the covenant when she took her interest
Requirements for Benefits of Covenant to Run With Land
A successor in interest to the benefiting estate may enforce the covenant if the requirements below are satisfied
Requirements:
1) Writing—original covenant was in writing
2) Intent—original parties intended benefit to run with land
» Look to language of the covenant; courts are liberal in construing requisite intent
3) Touches and concerns the land
» The covenant must affect parties’ legal relations as landowners (a very low standard)
4) Vertical privity—successors in interest are in vertical privity with the original covenanting parties (e.g., through contract, devise, or descent)
» Horizontal privity is not required for majority of states
Equitable Servitudes
Equitable servitudes are covenants enforced in equity against successors through injunctive relief (i.e., injunction is the remedy)
• I.e., a covenant that will be enforced against successors of the burdened land who have notice of the covenant
• Privity is not required to bind successors
Creation—requirements:
1) Writing—written promise
» Exception—reciprocal negative servitudes may be implied from a common scheme for development of a residential subdivision
2) Intent—original parties must intend to bind successors
3) Touches and concerns the land
4) Notice—successors of the burdened land had notice
» Notice not required for benefit to run
Defenses to enforcement—a court will not enforce an equitable servitude if any of the following conditions exist:
1. Pervasive changes in the neighborhood — the neighborhood conditions have changed so significantly that enforcement would be inequitable;
2. Estoppel — a benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived;
3. Acquiescence — a benefited party acquiesced in a violation of the servitude by a burdened party;
4. Unclean hands — the person seeking enforcement is violating a similar restriction on his own land; or
5. Laches — the benefited party fails to bring suit against the violator within a reasonable time.
Equitable Servitudes Termination
Like other nonpossessory interests, an equitable servitude may be extinguished by: (1) written release from the benefit holders, (2) merger of the benefited and burdened estates, or (3) condemnation of the burdened property.
