Servitudes Flashcards
Easements, Licenses, Profits, Covenants, Equitable Servitude (24 cards)
Easement
An easement is a non-possessory interest in another’s property. It grants the easement holder a limited use/enjoyment of another’s land.
Examples: Right to place utility lines, right of way, right to tap into a drain, etc.
Affirmative or Negative Easement
Affirmative easement is the right to do something on another’s land.
Negative easement allows holder to prevent servient owner from doing something on his own land. Generally only four categories (LASS[S]): light, air, support, and stream water from artificial flow. A minority of states also allow negative easements for “scenic views.” Light is the most common negative easement tested on the Bar exam.
Creation of Easements
Negative Easements must be explicitly bargained for and created expressly by a writing.
Easement Appurtenant
In an easement appurtenant, the easement benefits the holder in his use/enjoyment of his own land at the expense of the servient tenement.
Requires two parcels of land. The dominant tenement derives the benefit of the easement. The Servient tenement bears the burden of the easement.
Transferability: Easement appurtenant passes automatically to a new owner, unless the new owner is a BFP of the servient tenement without notice of easement.
E.g., Dominant tenement gets to cross servient tenement’s land to get to the public road.
Easement in Gross
An easement in gross is when the holder only gets a personal or commercial advantage unrelated to the use/enjoyment of his own land.
Servient land is burdened but there is no dominant tenement.
Transferability: Easement in gross that are commercial are transferable. A easement in gross that is personal (e.g., swimming in the pond) is NOT transferable;e.
Common Examples: Right to place a billboard on another’s land, right to swim in another’s pond, utility company placing power lines on your land.
Creation of Affirmative Easements
Affirmative Easements can be created by (PING): Prescription, Implication, Necessity, Grant
Prescription: Continued (for statutory period), open and notorious, actual (but not exclusive), and hostile (without permission) use for statutory period.
Implication: Easement implied from preexisting use. Use prior to division of land was apparent and continuous, and parties reasonably expected that prior use would endure because it is reasonably necessary to the now-dominant parcel’s use and enjoyment.
Necessity: Landlocked setting. An easement by necessity is created when the owner of land sells a part of it and deprives the part sold of access to a public road or utility line. Court will imply an easement of necessity when grantor conveys a portion of tract with no way out.
Grant is most common. A signed writing. In practice virtually all easements have to be in writing because of statute of fruads. IF term of easement > 1 year, must pass state of frauds. Writing is called a “deed of easement”
Scope of Easement
Set by terms of a grant or conditions that created it
Termination of an Easement
To terminate an Easement “END CRAMP”
Estoppel: Servient owner materially changes position in reliance on easement holder stating he will no longer use easement.
Necessity: Easement by necessity ends when the necessity ends (unless the easement was agreed to in writing).
Destruction of Servient Land (involuntary destruction–voluntary destruction by the servient owner does not terminate easement)
Condemnation of servient land. THe easement holder may be entitled to compensation for value lost.
Release: Written release by holder to servient owner. Very common on bar.*
Abandonment: Easement holder shows by AFFIRMATIVE PHYSICAL ACTION that he will not use easement again. E.g., A puts up structure on parcel that prevents him from ever reaching B’s parcel again. Non-use does not count as abandonment unless accompanied by other evidence of intent to abandon. Common on bar exam. Often a railroad company pulling up tracks.
Merger: Easement and servient land become held by the same entity (A buys both parcels of land).
Prescription by servient owner. Servient owner interferes with easement holder’s right to use easement (e.g., by putting up fence).
Surcharged Easement
If an easement is said to be surcharged, this means the easement’s legal scope was exceeded.
When an easement’s scope has been set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs.
When an easement is surcharged, the servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed. Surcharging does not terminate the easement.
Licenses
Licenses are a mere privilege freely revocable unless estoppel applies. Statute of frauds does not apply.
- Tickets create a freely revocable license.
- “Neighbors talking by the fence” does not create an oral easement. An “oral easement” is actually a revocable license that can be revoked.
Revocation of License
Freely revocable at will of licensor unless estoppel applies.
Estoppel applies when the licensee has invested substantial money or labor in expectation that the license continues.
The Profit
Entitles holder to enter servient land and take resources.
Shares all rules of easements.
Termination of profit maybe done through “surcharge,” a misuse that exceeds the scope of profit on the servient estate.
On the bar exam, profits usually apply to minerals, timber, oil, natural products, and fish or game.
Covenants
A written promise by one landowner to another to do or not do something related to the land.
Unlike the easement, the covenant is not the grant of a property interest.
When a covenant runs with land, covenant binds successors to og covenanting parties. Different rules apply for the burden to run than the benefit to run.
May be affirmative or restrictive. Usually restrictive.
Restrictive Covenant
A written promise not to do something related to your own land.
Affirmative Covenant
Written Promise to do something related to land.
E.g., I promise to maintain our common fence, to keep our shared garden in good repiar.
Covenant vs. Equitable Servitude
Different basis of relief sought by plaintiff. If P wants money damages, construe servitude at law as a covenant. I P seeking enjoinment, then construe as an equitable servitude.
When does covenant run with land?
Covenant runs with land of both benefit and burden run with the land.
Requirements for Burden to Run (WITHN):
(1) Writing, (2) Intent, (3) Touch and Concern, (4) Horizontal and Vertical Privity, (5) Notice
Requirements for Benefit to Run (WITV): Writing, Intent, Touch and Concern, Vertical Privity. No Horizontal privity required for benefit to run.
Requirements for Burden to Run with Land (W-I-T-H-N):
To enforce the burden of a real covenant at law:
W – Writing:
Original promise must be in writing.
I – Intent:
Original parties must have intended the covenant to run (usually stated in the covenant or implied by context).
T – Touch and Concern:
Covenant must relate to the land—
> Restrictive: limits land use
> Affirmative: requires landowner to take action (e.g., maintain fence, shared garden)
H – Horizontal & Vertical Privity:
Horizontal: Requires that the original parties to a real covenant shared some interest in the land independent of the covenant at the time they entered it (e.g., grantor–grantee, landlord–tenant).
Vertical: Link between original party and successor (e.g., inheritance, sale, lease).
N – Notice:
Successor had actual, inquiry, or record notice of the covenant at time of purchase.
Equitable Servitude
Equitable servitude is a covenant (that is, a promise to do or not to do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against successors of the burdened land unless the successor is a bona fide purchaser. Accompanied by injunctive relief.
Creation of Equitable Servitude (WITNES):
Writing,
Intent,
Touch and Concern (benefit the covenantor and successor in use/enjoyment of burdened land),
Notice,
ES: Equitable servitude, provides injunctive relief
No privity needed to bind successors by equitable servitude.
Reciprocal Negative Servitude (Implied Equitable Servitude)
AKA the General or Common Scheme Doctrine
What is it? Exception to general requirement that original promise of equitable servitude be in writing. Applies to negative covenants and equitable servitudes, affirmative covenants must be in writing.
Analysis: Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds. However, in the absence of a writing, negative equitable servitudes may be implied if (i) there is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant), and (ii) the grantee had actual, record, or inquiry notice of the covenant.
Result? Even though D’s deed does not have the equitable servitude in writing, D is bound by it.
The above question is likely to be on bar exam! The archetype is a subdivider breaking up land into many plots for a subdivision, selling most plots with “residential only” in the deed, then selling a plot to a commercial developer without the “residential only covenant in the deed.
Notice Requirement of Covenants
Forms of Notice (AIR):
Actual notice: D was advised
Inquiry Notice: Neighborhood seems to conform to the common restriction (it’s the “lay of the land”). This is just a form of constructive notice. Can be imputed to the defendant regardless of actual notice.
Record Notice: If publicly recorded documents would have shown the covenant, D is imputed to have record notice. Another form of Constructive Notice.
Equitable Defenses ot Enforcement to Equitable Servitude
(1) Changed Neighborhood Conditions: The neighborhood conditions have changed so much that enforcement would be inequitable. E.g., equitable servitude prevents you from building commercially, but all the other buildings in the area are now commercial. This is a high standard–whole area’s essence needs to have changed. Mere pockets of change not enough.
(2) Unclean Hands: Person seeking enforcement of restriction is violating similar restriction on his own lands.
(3) Benefitted party acquiesced in a violation of the servitude by a burdened party.
(4) Estoppel: Benefitted party acts in a way that a reasonable person would assume the covenant was abandoned/waived.
(5) Benefitted party fails to bring suit against violator within reasonable timeframe (laches).
Termination of Equitable Servitude
EQuitable servitude may be terminated by:
(1) written release by benefit holder;
(2) Merger of the benefited and burdened estates
(3) condemnation of the burdened property.
Enforcement of Implied Equitable Servitude
When a subdivision is created with similar covenants in all deeds, there is a mutual right of endorsement (each lot owner can enforce against every other lot owner) if two things are satisfied: (i) a common scheme for development existed at the time that sales of parcels in the subdivision began; and (ii) there was notice of the existence of the covenant to the party sued.
Courts will allow prior purchasers to enforce the restriction against a subsequent purchaser even if the original grantor made no covenant in the deeds that all subsequent parcels would be subject to the restriction.
