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Flashcards in Servitudes Deck (53):

Types of servitudes

1. Affirmative easements
2. Negative easements
3. Real covenants
4. Equitable servitudes
5. Reciprocal negative servitudes (General Scheme Doctrine)
* The license
* The profit


Affirmative easements: method of creation

1. Prescription
2. Implication
3. Necessity
4. Grant


Affirmative easements: parties bound

1. Easement appurtenant = transferred automatically with dominant tenement.

2. Easement in gross for commercial purposes = assignable.


Affirmative easements: remedy

Injunction or damages.


Negative easements: method of creation

Created only by writing signed by grantor.

Applies only to:
1. Light
2. Air
3. Support
4. Streamwater


Negative easements: remedy

Injunction or damages.


Real covenants: method of creation

Writing signed by grantor.


Real covenants: parties bound

Burden of promise will run to successor of burdened lot IF:
1. Writing
2. Intent
3. Touch and concern
4. Vertical privity
5. Horizontal privity, and
6. Notice.

Benefit of promise will run to successor of benefited lot IF:
1. Writing
2. Intent
3. Touch and concern
4. Vertical privity.


Real covenants: remedy



Equitable servitudes: method of creation

Writing signed by grantor
* UNLESS implied by General Scheme Doctrine.


Equitable servitudes: parties bound

Successors bound IF:
1. Writing
2. Intent
3. Touch and concern
4. Notice to successors of burdened land

* (Privity not required.)


Equitable servitudes: remedy



Reciprocal negative servitudes (General Scheme Doctrine): method of creation

Majority view: In a subdivision, residential restrictions contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction IF:
1. At start of subdividing,
2. Grantor had a common scheme, and
3. Unrestricted lot holders had notice.

* Minority rule: subsequent grantees are not bound unless their lots are expressly restricted in writing.


Reciprocal negative servitudes (General Scheme Doctrine): parties bound

Where common scheme exists, subsequent purchasers with notice are bound.


Reciprocal negative servitudes (General Scheme Doctrine): remedy



Easements defined

The grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another's land, called the servient tenement.


Affirmative easements

Right to do something on servient land.


Negative easements

Negative easement holder is entitled to prevent the servient landowner from doing something that would otherwise be permissible.

Generally recognized in only 4 categories:
1. Light
2. Air
3. Support
4. Streamwater from an artificial flow

* Can only be created expressly, by writing signed by the grantor.


Easement appurtenent

Benefits the holder in his physical use or enjoyment of his property.

* A dominant tenement gets the benefit and a servient tenement bears the burden.

* Easement is always appurtenant to the DOMINANT land.


Easement in gross

Confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.

* The servient land is burdened, but there is no benefited or dominant land.

* E.g., placing a billboard, fishing or swimming in another's pond, power company laying power lines on another's land.


Easement appurtenant: transferability

Appurtenant easement passes AUTOMATICALLY with the dominant tenement, regardless of whether it is even mentioned in the conveyance.

* Easement appurtenant passes automatically with the servient estate, UNLESS the new owner is a bona fide buyer w/o notice.


Easement in gross: transferability

Easement in gross is not transferable UNLESS it is for commercial purposes.


Affirmative easements: creation by grant

An easement to endure for more than 1 year must be in a writing that complies with the formal elements of a deed.

* (Because of the Statute of Frauds.)
* The writing to evidence the easement is called a deed of easement.


Affirmative easements: creation by implication

Easements may be implied from existing use IF:
1. The previous use was apparent, and
2. The parties expected that the use would continue because it is reasonably necessary to the dominant land's use and enjoyment.


Affirmative easements: creation by necessity

The landlocked setting: an easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of the grantor's remaining land.


Affirmative easements: creation by prescription

An easement may be acquired by satisfying the elements of adverse possession:
1. Continuous use for the given statutory period
2. Open and notorious use
3. Actual use
4. Hostile use (w/o servient owner's consent)


Scope of an easement

Determined by the terms of the grant or the conditions that created it.


Termination of an easement

1. Estoppel
2. Necessity
3. Destruction of servient land
4. Condemnation of servient estate
5. Release
6. Abandonment
7. Merger doctrine
8. Prescription


Termination of an easement: estoppel

Servient owner materially changes his position in reasonable reliance on the easement holder's assurances that the easement will not be enforced.


Termination of an easement: necessity

Easements created by necessity expire as soon as the need ends.

* BUT if the easement, attributable to necessity, was nonetheless created by express grant, it does not end when the necessity ends.


Termination of an easement: destruction of servient land

Destruction of the servient land, other than through willful conduct of the servient owner, ends the easement.


Termination of an easement: condemnation of the servient estate

Condemnation of the servient estate (by eminent domain) ends the easement.


Termination of an easement: release

A written release by the easement holder to the servient owner terminates the easement.


Termination of an easement: abandonment

The easement holder must demonstrate by PHYSICAL ACTION the intent to NEVER use the easement again.

* Mere nonuse or words are insufficient to abandon.


Termination of an easement: merger doctrine

The easement is extinguished when title to the easement and title to the servient land become vested in the same person.

* (a.k.a. "unity of ownership")

* If complete unity of title is achieved, the easement is extinguished. Even if there is later separation of title, the easement is not revived.


Termination of an easement: prescription

The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession:
1. Continuous interference
2. Open and notorious
3. Actual
4. Hostile to the easement holder


The license

A mere privilege to enter another's land for a delineated purpose (very informal).

* Not subject to the Statute of Frauds.

* Licenses are FREELY REVOCABLE at the will of the licensor, unless estoppel applies to bar revocation (only when licensee has invested substantial money, labor, or both in reasonable reliance on the license's continuation).


When does estoppel apply to bar revocation of licenses?

Only when licensee has invested substantial money, labor, or both in reasonable reliance on the license's continuation.


Classic license cases

1. Tickets: tickets create freely revocable licenses.

2. Neighbors talking by the fence: an oral easement creates a freely revocable license (because otherwise would violate the Statute of Frauds).


The profit

The profit entitles its holder to enter the servient land and take the soil or some substance of the soil, such as minerals, timber, oil.

* The profit shares all the rules of easements.


The covenant defined

The covenant is a promise to do or not do something related to land.

* It is unlike the easement because it is not the grant of a property interest, but rather a CONTRACTUAL LIMITATION or promise regarding land.

* Can be negative (restrictive covenants) or affirmative.

* One tract is burdened by the promise and one is benefited.


Analysis for whether covenant runs with the land (and can bind successors):

1. Does the burden of A1's promise to B1 run from A1 to A2?
2. Does the benefit of A's promise to B1 run from B1 to B2?


Covenants: does the burden run with the land?

Elements necessary:
1. Writing: promise must be in writing
2. Intent: the original parties intended that the covenant would run
3. Touch and concern the land
4. Vertical privity
5. Horizontal privity
6. Notice: A2 had notice of the promise when she took


Covenants: horizontal privity

Nexus between the original parties.

Must be in "succession of estate"—
1. grantor-grantee
2. landlord-tenant
3. mortgagor-mortgagee


Covenants: vertical privity

Nexus between A1 and A2—some non-hostile nexus such as contract, devise, or descent (not adverse possession).


Covenants: touch and concern the land

The promise must affect the parties' legal relations as landowners and not simply as members of the community at large.

* Covenants to pay money to be used in connection with the land (such as homeowners' association fees) and covenants not to compete DO touch and concern the land.


Covenants: does the benefit run with the land?

(I.e., does B2 have standing to make this claim.)

1. Writing: the original promise must be in writing
2. Intent: the original parties intended that the benefit would run
3. Touch and concern the land
4. Vertical privity


Equitable servitudes defined

A promise that equity will enforce against successors.

* Accompanied by injunctive relief.


Equitable servitudes: forms of notice

1. Actual notice
2. Inquiry notice
3. Record notice


Equitable servitudes: actual notice

∆ had literal knowledge of the promises in the prior deeds


Equitable servitudes: inquiry notice

Constructive notice when neighborhood conforms to the common restriction (the lay of the land).


Equitable servitudes: record notice

Constructive notice on buyers on the basis of the publicly recorded documents.

* Good courts: subsequent buyer does not have record notice of the contents of the prior deeds transferred to others by the common grantor.

* Bad courts: subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor.


Equitable defenses to enforcement of an equitable servitude

Changed conditions.

The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed.

* Mere pockets of limited change is insufficient.