Servitudes Flashcards
What are the 5 kinds of servitudes?
Affirmative easements, negative easements, affirmative profits, real covenants, equitable servitudes
What does appurtenant vs. in gross mean?
In gross means no land needs to be owned by the beneficiary
Appurtenant means the land is what is benefitted
What are the negative easements allowed at common law?
Light, air, water, support
What are the SoF exceptions for creation of easements?
Fraud, part performance, estoppel, implication, prescription
What are the two ways an easement is created in a deed?
Reservation: Provision in a deed creating some new servitude which did not exist before as an independent interest (At CL could not benefit 3rd party, can now)
Exception: Provision in a deed that excludes from the grant some preexisting servitude on the land (Cannot benefit 3rd party)
What is a license?
A license is an oral or written permission given by the occupant of land allowing the licensee to do some act that would otherwise be a trespass
What are the three kinds license? Which are revocable?
Permissive: Licensee can be there (revocable)
License + Interest: License irrevocable as long as profit (e.g., to fish on land) remains
Estoppel: Irrevocable as long as use exists
Can easements be modernized?
Yes, if reasonable
Can easements be extended?
In vast majority of jurisdictions, no
What are the two views for determining whether a license cannot be revoked because of estoppel?
Maj. view: Need a writing
Min. view: An oral license is fine
What are quasi-easements?
Easements implied from previous use in which there is one previous common owner
who used one part of the land previous, apparently, and continuously to benefit another part of the land
and that use is now necessary
What are two kinds of quasi-easements?
Implied reservation: DT retained by grantor
Implied grant: ST retained by grantor
What are the different views for determining what “necessary” means under the requirements for a quasi-easement as they relate to the different kinds?
Implied reservation (DT retained by grantor)
Maj: Requires strict necessity (usually only ingress/egress)
Min: Allows for reasonable necessity
Implied grant (ST retained by grantor)
Requires only reasonable necessity
What are the requirements for an easement implied by necessity?
Previous common owner
Easement is a strict necessity, not a mere convenience
Necessity existed at the time of the severance of the two estates (causation element: severance caused the necessity)
What are the three statutory views for dealing with land-locked estates?
CL/Maj. view: Owner of landlocked property will be given way of egress/ingress even if owner is aware of the situation at purchase
Min: Grantor can landlock themselves because they would only do it if efficient
WA/OR (AJ prefers): Will not allow person to remain landlocked, gets private power of eminent domain and must reimburse dominant tenement
What are the requirements for prescriptive easements?
Continuous and uninterrupted
Adverse use
Notorious and open
SoL satisfied
Because adversity can be difficult to prove regarding use, what are the rules for dealing with that difficulty?
Maj. rule: Presume adversity if the other conditions are met; to rebut, landowner must do something to interrupt the prescriptive use
Are appurtenant easements assignable?
Yes, they pass automatically to an assignee
Are easements in gross assignable and divisible?
If the court intended the easement to be assignable, then allowed
If the the easement in gross is an exclusive right, it is divisible; if not, then the one stock rule
Exception: If it is personal or there is a fear of burdening the land, the court may find it is not assignable
What are the ways an easement can be terminated?
Release – normally requires written and recorded, easement owner agrees
Expiration – if duration is limited in some way (defeasible easement)
Merger – easement owner later becomes the owner of the servient estate
Estoppel – if the servient owner reasonably relies on a statement by the dominant tenement owner
Condemnation – if gov exercises its eminent domain power to take title to a fee interest in the servient estate for a purpose inconsistent with the continued use of the easement
Prescription – if servient owner wrongfully/physically prevents the easement from being used for the prescriptive period
Abandonment – (Marvin Brandt) makes servitude unenforceable as to the entire parcel rather than just the party immediately involved
Usually cannot be abandoned through non-use alone; must file to abandon
What is a real covenant? What are the damages?
A covenant between parties enforceable at law that binds the parties’ successors
Remedy is damages
What are the requirements for a real covenant?
1) Agreement must be in writing
2) Parties must intend to bind future successors
3) Promise touches and concerns the land (If you put in two average homeowners who are not subject to transaction costs, would they come to the same agreement?)
4) Vertical and horizontal privity of estate
What is vertical and horizontal privity of estate, and what requirements need to be met for real covenants?
Vertical: Privity of estate between one of the covenanting parties and the successor in estate
For the burden to run, the entire same kind of estate must be transferred
For the benefit to run, a smaller estate can be transferred
Horizontal: Grantor-grantee relationship (In England, only exists between LL and tenant)
What is an equitable servitude? What is the remedy?
A covenant between parties enforceable at equity that binds the parties’ successors. The remedy is injunction
