Servitudes Flashcards
Servitudes
legal tools to increase or decrease the use rights of individual landowners that are bargained for between individuals. Servitudes are non-possessory interests in property. This means, a conveyance of a right to engage in one particular use.
3 Types of Servitude
- Easement
- License
- Covenant
Easement
a non-possessory, non-revocable right to enter and use the property of another person.
Ex: Daisy grants Mickey the right to use her driveway to access the Clubhouse.
License
a revocable right to enter the property of another person.
Ex: Daisy grants the pizza delivery driver permission to come to the door and drop off the food.
Covenant
a binding promise about the use of land.
Ex: Daisy promises that she will not build any structure or plant any vegetation that reduces Mickey’s access to sunlight
Dominant Parcel
Benefitted
Servient Parcel
Burdened
Easement in Gross
Easement benefits a specific person regardless of land ownership.
- These are traditionally non-transferrable, with the exception of a commercial reason.
- Personal easements in gross end with the life of the individual.
- If the grantor dies, it’s still valid.
Easements Appurtenant
Runs with the land. An interest in property runs with the land if it automatically transfers to subsequent owners.
- This is usually default.
How do we make it stick?
- Must be intended – put in the deed/land records
- Give notice, especially to the burdened party
Affirmative Easement
gives the holder the right to go on another’s land for a purpose
Negative Easement
prohibits the owner of the servient estate from engaging in some action on the land
Express Easement
Easements that are created through voluntary transactions. They are generally created with an easement deed.
Requirements:
- Must comply with the Statute of Frauds (i.e., be written) because they are interests in land.
- Should be recorded in the land records to ensure that they bind subsequent owners.
Two Ways to make Express Easement
- Grant
- Reservation
Grant
when you own a parcel, and sell an easement (a use right of your parcel) to someone else
Reservation
when you own the whole parcel and sell part of the parcel to someone else, but reserve for yourself an easement.
Stranger to the Deed Rule
an easement may not be reserved to benefit a third party.
Ex: Daisy makes an offer to buy all of Mickey’s land. Mickey wants to sell, but he wants to ensure that Goofy can continue to use the driveway to access his lot. If Mickey conveys the property with an easement to benefit Goofy in the deed to daisy, the common law rule invalidates this reservation.
Easement by Estoppel
(1) oral agreement plus (2) reasonable and foreseeable detrimental reliance that leads to an enforceable easement.
2 Implied Easements
- Implied by Prior Use
- Easement by Necessity
Easement Implied by Prior Use
When a parcel of land is divided and amenities once enjoyed by the whole parcel are now split up, such that in order to enjoy the amenity (a utility line, or a driveway, for example), one of the divided lots requires access to the other.
Easement Implied by Prior Use Elements
(1) unity of ownership between the 2 parcels
(2) the use was in place before the parcel was severed
(3) the use in question was apparent and continuous
Apparent: “capable of discovery by a reasonable inspection”
(4) the easement is a reasonable necessity for the enjoyment of the dominant estate
Reasonable Necessity: “highly convenient” – low bar.
Easement by Necessity
Arises when land becomes landlocked or incapable of reasonable use absent an easement.
Easement by Necessity Elements
(1) Both properties must at one time have been owned by the same party (unity of ownership)
(2) The common source of title must have created the situation causing the dominant tenement to become landlocked (strict necessity) – does not need to be absolute
(3) At the time the common source of title created the problem, the servient tenement must have had access to a public road
Prescriptive Easements
Acquired in same manner similar of adverse possession, as it is a non-permissive use that ultimately ripens into a property interest.
Ex: Using another person’s land every day to walk/drive, and it meets the elements of adverse possession.
The element of exclusivity is not required because you are using another person’s land and you cannot exclude them from their own land.
Scope of Easements
If the easement document is specific about the scope then it controls.
When the easement does not outline the scope: VIBES – Reasonableness Test
- How much is the use going to interfere with the servient estate?
- Is the nature of the use changing?
- What do we expect the property to be used for? (Subdivision of property is foreseeable?)
