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Flashcards in Servitudes Deck (17):
1

EASEMENT

What is an easement?

EASEMENT = the grant of a nonpossessory interest entitling the holder (DOMINANT TENEMANT) to some use of another’s land (SERVIENT TENEMANT)

1) Can either be AFFIRMATIVE OR NEGATIVE

AFFIRMATIVE: dominant go onto servient land and do something

NEGATIVE: may bar servient landowner from doing something; ONLY "L-A-S-S"S types, which must be in writing/signed...
Light;
Air;
Support (underground);
Streamwater from artificial flow (irrigation)
Scenic View (MINORITY VIEW)

***GUARANTEED BAR QUESTION ON LASS(S)****

NOTE: Negative easements can only be created EXPRESSLY, by WRITING & SIGNED -- there is no natural or automatic right to a negative easement

2) Can either be APURTENANT TO THE LAND OR HELD IN GROSS

EASEMENT APURTENANT to dominant tenement: directly benefits property of dominant tenement (i.e. must be 2 pieces of property)
→ TRANSFER: passes automatically w/ land trnfr EVEN w/o mention; except if purchaser of servient land is BFP w/o NOTICE

EASEMENT IN GROSS: personal pecuniary benefit to holder, NOT land (e.g. put up a billboard; swim in another’s pond).
→ TRANSFER: NOT transferable UNLESS commercial purpose (e.g. using a lake for fishing to benefit a tuna fish company)

3) Scope of easement: limited to terms of creation; no unilateral expansion

2

CREATION OF AFFIRMATIVE EASEMENT

How do you create an affirmative easement?

An affirmative easement is created Under "P-I-N-G" circumstances...

(P) Prescription
(I) Implication
(N) Necessity
(G) Grant
-----------------------------------------------------------------------------------
(P) Prescription: acquired b/c of adverse possession. If there is permission then easement by prescription will be defeated since there will be no HOSTILE use which is a part of adverse possesion

Adverse possession = C-O-A-H =
(C) Continuous use for statutory period (NYS: 10 yrs);
(O) Open and notorious use;
(A) Actual use;
(H) Hostile (land used w/o servient owner's consent)

(I) Implication: Easement by implication requires:
(i) use that's apparent; AND
(ii) that the parties expect survival of easement b/c
it's reasonably necessary to the dominant
tenement's use/enjoyment
e.g. selling a lot that one has parceled where the drainage system used by lot 2 is located on lot 1

(N) Necessity: if a grantor convey a landlocked tenement, then an easement will be implied
NOTE: the grantor can CHOOSE where to locate the easement

(G) Grant: An easement can be granted BUT an easement that endures for more than 1 yr MUST be in writing that complies w/ the formal elements of a deed (to satisfy SOF) (writing will be called a deed of easement)
Note: The granted easement Can and SHOULD be recorded

3

TERMINATION OF EASEMENT

What are the 8 methods to terminate an easement?

To terminate you must You "E-N-D C-R-A-M-P"

To terminate you must You "E-N-D C-R-A-M-P"...
(E) Estoppel
(N) Necessity
(D) Destruction of servient land

(C) Condemnation of servient land
(R) Release
(A) Abandonment
(M) Merger doctrine (aka unity of ownership)
(P) Prescription
-------------------------------------------------------------------------------
(E) Estoppel: servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced will end the easement

(N) Necessity: If the easement was created by necessity then it ends when necessity ends, UNLESS the easement that was created by necessity was actually created by an EXPRESS GRANT! Then it will continue to be in effect (WATCH OUT FOR THIS!!!!)

(D) Destruction of servient land: w/ no fault of of the servient owner will end the easement

(C) Condemnation of servient land: by eminent domain will end the easement

(R) Release: WRITTEN release given by the easement holder to the servient owner will end the easement

(A) Abandonment: the easement holder must demonstrate by affirmative action the intent to never use the easement against. Then this will end the easement
NOTE: Mere NON-USE of the easement is NOT enough to create abandonment; you need an AFFIRMATIVE ACT, showing intent to abandon
e.g. Dominant tenant needs to go as far as to erect a structure that prevents use of easement on servient tenants land
(WATCH OUT AS THIS IS MOST FREQUENTLY TESTED!)

(M) Merger doctrine (aka unity of ownership): the easement is extinguished when title to easement and title to servient land become vested in the same person (NOTE: remains extinguished even if title is later separated)

For merger to apply, both pieces of land must be vested in the same person, in the SAME manner (i.e. NOT fee simple absolute & a life estate)

(P) Prescription: The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession
Prescription ~ C-O-A-H (sans exclusivity requirement of adverse possession)

Adverse possession = C-O-A-H =
(C) Continuous use for statutory period (NYS: 10 yrs);
(O) Open and notorious use;
(A) Actual use;
(H) Hostile (land used w/o servient owner's consent)

4

LICENSE TO ENTER LAND

What is a license?

License = a mere privilege, freely revocable (unless estoppel applies), to enter land for a delineated purpose (weakest of the servitudes family)

NOTE: Not subject to the SoF so NO WRITING RQRD

May or may not be for consideration

Classic cases...
1) Tickets (e.g. movie)
2) Neighbors "talking at the fence": when this oral “easement” violates the SOF it becomes a license

Estoppel applies ONLY when licensee has invested substantial $$$$ and/or LABOR in reasonable reliance on license's continuation

5

THE PROFIT

What is a profit?

The Profit = the name for an easement that entitles the holder to enter onto servient land AND take the soil or some substance of the soil (Minerals, timber, oil)

The legal regime that governs the profit is the same as that for the easement

6

THE COVENANT

What is a covenant?

The Covenant = 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 contract or promise regarding the land

One tract of land is "burdened by the promise and another is benefited"
e.g. Neighbor A promises neighbor B that A will not build for commercial purposes on A’s property. A’s parcel is burdened by the promise. B’s parcel is benefited

Two types...

1) Restrictive (Negative) covenant: promise to refrain from doing something related to land
(e.g. promise not build commercial bldg)

2) Affirmative covenant: promise to do something related to land (e.g. promise to maintain a fence)  

7

Covenant versus Equitable Servitude

What is the difference b/t a covenant and an equitable sevitude?

(IMPORTANT DISTINCTION)

ALWAYS look at the call of the question and see if π is seeking an injunction or money damages

IF...
1) π seeks monetary damages = covenant

2) π seeks injuction/equitable relief = equitable servitude

8

TEST FOR WHETHER COVENANT "RUNS WITH THE LAND"

When will a covenant "run with the land" (i.e. benefiting the successors)?

In investigating if the covenant runs with the land, two separate contests must be resolved:
1. Horizontal privity btwn original parties
2. Vertical privity between new party on side of burdened parcel and/or benefited parcel

(burdened parcel) A - - - - - - - - - - - B (benefited
parcel)
| horizontal privity |
| |
| |
| |
vertical | | vertical
privity | | privity
| |
A-1 B-1

First analyze BURDEN side then BENEFIT side...

BURDEN (harder to run w/the land):
To run, you' d need "W-I-T-H-N"...
(W) Writing
(I) Intent
(T) Touch & concern land
(H) Horizontal AND vertical privity
(N) Notice

(W) Writing: the original promise has to be in writing

(I) Intent: original parties intended covenant to run

(T) Touch & concern land: the promise must affect the parties' legal relations as landowners (and NOT simply as members of public at large)
e.g., homeowners assn. fees; covenant not-to-compete DO touch/concern

(H) Horizontal AND vertical privity
→ Horizontal privity refers to the nexus b/t original parties A & B requiring that they'd be in succession of estate (i.e. grantor-grantee; landlord-tenant; mortgagor-mortgagee) VERY VERY HARD to establish
IF IT IS ESTABLISHED, it will likely be a grantor-grantee relationship where A sold to B with the covenant in place
→ Vertical privity refers to nexus btwn A & A-1, which merely requires some non-hostile nexus (i.e. contract, devise, decent, but NOT adverse possession)

(N) Notice: burdened present party must have had notice of promise when he took land (record/constructive)

Benefit (easy to run w/the land):

To run, you'd need "W-I-T-V"...

(W) Writing: see above
(I) Intent: see above
(T) Touch and concern land: see above
(V) Vertical privity (ONLY): see above

9

THE EQUITABLE SERVITUDE

What is an equitable servitude?

The equitable servitude = A promise concerning land that EQUITY will enforce against successors (accomplished by injunctive relief)

10

TO CREATE AN EQUITABLE SERVITUDE

How do you create an express equitable servitude?

To create an equitable servitude that will BIND successors, there must be "W-I-T-N-E-S"...
(W) Writing
(I) Intent
(T) Touch and concern the land
(N) Notice
=
(ES) Equitable Servitude 
------------------------------------------------------------------------------------
(W) Writing: orginal promise was in writing

(I) Intent: original parties intended for promise to run and bind successors

(T) Touch and concern the land: the promise mut affect parties as landowners
(N) Notice: the assignee of burdened land had notice of promise
=
(ES) Equitable Servitude 

PRIVITY is not necessary to bind successors!

11

The implied equitable servitude—the general or common scheme doctrine

What is the general or common scheme doctrine? 

NOTE: NY Distinction

The general or common scheme doctrine = an IMPLIED equitable servitude will be CREATED when there is a common scheme but an unrestricted lot holder within the scheme. The ct will IMPLY a reciprocal negative servitude (a.k.a. implied equitable servitude) to hold the unrestricted lot holder to the restrictive covenant

To enforce an implied covenant on unencumbered land, MUST SHOW...

1) Subdivider had general development scheme embodied in deed restriction

2) Purchaser of lot had notice of restriction (A-I-R) (A) Actual notice: ∆ had literal knowledge of the promises in the prior deeds

(I) Inquiry notice: by plain sight, the development obviously conforms to the elements of the restriction (can tell by the "Lay of the Land")

(R) ecord notice: imputed to buyer who doesn’t check publicly recorded documents (NOT NY)
****NY DISTINCTION: NY DOES NOT APPLY RECORD NOTICE HERE -- seen as the "better view" b/c it is less burdensome on the purchaser's title searcher

Defenses allowing RELEASE from enforcement of equitable servitude = CHANGED CONDITION
Changed condition: pervasive changed conditions to ENTIRE area/subdivision
NOTE: mere pockets of limited change is NOT sufficient

12

ADVERSE POSSESSION

What is adverse possession?

Adverse Possesion = Possession, for a statutorily prescribed period of time, CAN, IF certain elements are met, RIPEN into TITLE

13

ELEMENTS OF ADVERSE POSSESSION

What are the elements of adverse possession? NOTE: NY Distinctions

Adverse possession = C-O-A-H =
(C) Continuous use for statutory period (NYS: 10 yrs);
(O) Open and notorious use;
(A) Actual use;
(H) Hostile (land used w/o servient owner's consent)


(C) Continuous: uninterrupted for the statutory period *****NOTE in NY: Statutory pd = 10yrs

NOTE: A tenant in common in exclusive possession req's 20 yrs to adversely possess

(O) Open and notorious: the adverse possessor must use the land with the same type of possession that an actual owner would make (not secret use)

(A) Actual and exclusive POSSESSION: possession has got to be a LITERAL entry onto the property that's EXCLUSIVE

(H) Hostile: the possessor doesn't have owner's PERMISSION to be there (possessor's subjective state of mind--knowing one is on another's land--is IRRELEVANT)

****NY DISTINCTION: for adverse possession to apply, the possessor must have a good faith belief (albeit a mistake one) that the land occupied is INDEED his own -- adverse possession is NOT AVAILABLE for the bad faith encroacher
(IMPORTANT RECENT CHANGE IN NY LAW!)

14

TACKING

What is tacking?

(related to Adverse Possesion)

Tacking = One adverse possessor may "tack" on his time with the land his predecessor's time, SO LONG AS there is privity, which is satisfied by ANY non-hostile nexus (i.e. blood, contract, deed, will)

BUT Tacking is NOT allowed when there has been an OUSTER
(***very likely BAR question)

15

DISABILITY OF OWNER AND ADVERSE POSSESSION

How can an owner's disability affect adverse possession?

The SOL on an adverse possession claim will NOT run against a TRUE OWNER who is afflicted by a disability (i.e. infancy, insanity, imprisonment) AT THE START of the adverse possession

NOTE: this means that if the true owner goes insane one year into the adverse possession start date then the SoL will continue to run.

16

NEGATIVE EASEMENT

How do you create negative easement?

NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY BY WRITING SIGNED BY THE GRANTOR. THERE IS NO NATURAL OR AUTOMATIC RIGHT TO A NEGATIVE EASEMENT

17

WHAT ARE THE 5 TYPES OF SERVITUDE

1) The Easement
2) The License
3) The Profit
4) The Covenant
5) The Equitable Servitude