Servitudes Flashcards
This deck introduces servitudes in real property law, including easements, covenants, and equitable servitudes. It is designed to help 1L students understand how these nonpossessory interests affect land use and run with the land. (37 cards)
What is an easement?
Right to a non-possessory property interest in land that entitles the owner to use or enjoyment of the land for a specific purpose.
What is a dominant estate?
Land/property that benefits from the easement.
What is a servient estate?
Land burdened by the easement.
What is an affirmative easement?
Gives holder the right to affirmatively use the servient estate (i.e. to do something on the servient estate)
What is a negative easement?
Forbids the servient estate from doing something it would otherwise be allowed to do on the land.
How are negative easements created?
Must be signed and in writing.
What is an easement appurtenant?
Benefits one parcel of land (dominant estate) while burdening another (servient estate).
⭐️ Attaches to the land and not a person
What is an easement in gross?
Gives a person or entity a right to use a servient estate that is personal to the holder.
Ex. Billboard or power lines on servient estate
What are 4 ways in which an affirmative easement can be created?
- Prescription
- Implication
- Necessity
- Grant (signed in writing)
💡Remember “P-I-N-G”
What are two ways to create an express easement?
- By Grant: express grant of easement, signed and in writing by servient estate to satisfy SOF (if easement could exist for longer than one year)
- By Reservation: grantor conveys title, but reserves right to easement
How do you create an easement by prescription?
Similar to acquiring land by adverse possession. Use of easement must be:
- Continuous
- Open
- Hostile
- Actual
Negative easements cannot be established through prescription.
Summarize the holding of:
Holbrook v. Taylor
(1976 Ky.) An easement by estoppel may arise when a landowner allows another to use their land and that party reasonably relies on the permission by making substantial improvements.
In Holbrook v. Taylor, Taylor used an existing haul road across Holbrook’s land to access and build on his adjacent property. Tthe court found there was no prescriptive easement, since the use was with implied permission.
However, it recognized an easement by estoppel, as Taylor had reasonably relied on continued access and made significant improvements. The court held it would be inequitable to deny him continued use of the road.
How is an easement by implication created?
- Land was initially undivided: Easement exists on a single tract of land that was subsequently severed into the servient and dominant estate;
- Apparent, existing, and continuing use of one parcel at the time of severance
- Easement is reasonably necessary for enjoyment of dominant estate at the time of severance.
Summarize the holding of:
Van Sandt v. Royster
(Kan. 1938) An easement may be implied by prior use if the use was apparent and necessary for the reasonable enjoyment of the dominant estate, even if not visible.
In Van Sandt v. Royster, Van Sandt bought a property previously owned by Bailey, who had installed an underground sewer line serving two neighboring lots. Although the sewer line wasn’t mentioned in any deeds, it continued to benefit the neighboring properties. Van Sandt sued to block its use.
The court held that an easement was implied by prior use, noting that the use was apparent through circumstances and necessary for the enjoyment of the upstream lots, even though the sewer was not visibly obvious.
This is an example of an easement by implication.
How do you create an easement by implied necessity?
An easement by implied necessity is created where:
- Dominant and servient estates were once a single parcel under common ownership; and
- Severance of the parcel made the easement absolutely necessary
Summarize the holding of:
Othen v. Rosier
(Tex. 1950) No easement by necessity or prescription exists where necessity was not present at the time of conveyance and use was merely permissive.
In Othen v. Rosier, Othen’s land was landlocked, and he accessed it using a road across Rosier’s property, which Rosier had maintained. When Rosier made the road impassable, Othen sued, claiming easements by necessity and prescription.
The court denied both claims, holding that an easement by necessity requires strict necessity at the time of the original conveyance, which Othen did not establish.
The court also found the use of the road was permissive, not adverse, defeating the claim for a prescriptive easement.
What is an easement by estoppel (also called an “irrevocable license”)?
If a licensor grants a license on which the licensee reasonable relies to make substantial improvements to property, the owner will be deemed to have created an easement by estoppel; thus, will not be able to deny the improver access to the land.
How is an easement by estoppel created?
- License granted (typically for access purposes; can be express or implied);
- Reasonable reliance by a party that uses the access to improve the land;
- The grantor’s knowledge or a reasonable expectation that the improver would use the license
When can the owner of an easement seek contribution for repairs?
Only after providing adequate notice and an opportunity for co-owners to participate in repair decisions
What are six ways to terminate an easement?
- Abandonment: Must be evidence of a clear and unequivocal intention to abandon the easement; mere non-use is not enough;
- Misuse: Some courts hold that misuse by the easement holder extinguishes the easement (rarely used);
- Duration: The easement is expressly time bound;
- Release: The holder agrees to release rights to the servient owner (must be in writing);
- Merger: The holder acquires the rights to both the dominant and servient lands.
- Estoppel: Servient owner reasonably relies upon a statement or representation by the easement owner
What is a license?
A freely revocable, non-possessory right to use the land.
Differentiate between a license and an easement.
Licenses:
- Freely revocable (unless detrimental reliance or coupled with interest)
- Privilege, not an interest in land
- Can be created without consideration or writing (no statute of frauds requirement)
Easements:
- Last for specific period or indefinitely
- Interest in land
- Must satisfy the statute of frauds
What is a covenant?
A servitudes that either restricts landowners from doing certain things on property or impose obligations on them to do certain things.
What is a real covenant?
A covenant concerning real property that “runs with the land” (i.e. bind successors)