Servitudes

Question 1

servitudes

Answer 1

easement, license, profit, covenant, equitable servitude

Question 2

servitudes

easement

Answer 2

definition, affirmative or negative, appurtenant or in gross, transferability, creation of affirmative easement, scope of easement, termination of easement

Question 3

servitudes
easement
definition

Answer 3

easement
The right to do something on servient land.
The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land called the servient tenement.

Question 4

servitudes
easement
affirmative or negative

Answer 4

Most easements are affirmative.
A negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
Negative easements are generally recognized in only 4 categories (LASS): light, air, support, stream from an artificial flow
Negative easements can ONLY be created EXPRESSLY, by writing, SIGNED BY THE GRANTOR. There is no natural or automatic right to a negative easement.

Question 5

servitudes
easement
appurtenant or in gross

Answer 5

1. An easement is appurtenant when it benefits its HOLDER in his physical use or enjoyment of his property.
   a. 2 parcels are implicated
   b. Dominant tenement gets the benefit
   c. Servient tenement bears the burden
2. An 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.
   a. Only 1 parcel is implicated
   b. Servient land bears the burden
   c. There is no benefited or dominant tenement.
   d. Examples: billboard, swimming, lay power lines

Question 6

servitudes
easement
transferability

Answer 6

1. An easement appurtenant PASSES AUTOMATICALLY with the dominant tenement, regardless of whether it is even mentioned in the conveyance.
2. An easement in gross is NOT TRANSFERABLE UNLESS it is for commercial purposes.

Question 7

servitudes
easement
creation of an affirmative easement (PING)

Answer 7

Prescription, necessity, implication, grant

1. By grant
2. By implication
3. By necessity
4. By prescription

Question 8

servitudes
easement
creation of an affirmative easement by grant

Answer 8

By grant

For an easement to endure for more than 1 year, it MUST BE IN WRITING to comply w/the formal elements of the SoF

Question 9

servitudes
easement
creation of an affirmative easement by implication

Answer 9

By implication (aka easement implied from existing use)
A court may imply an easement if:
1. The previous use was apparent AND
2. The parties expected it would continue b/c it is reasonably necessary to the dominant land’s use and enjoyment.

Question 10

servitudes
easement
creation of an affirmative easement by necessity

Answer 10

By necessity (landlocked)
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 part of Grantor's remaining land.

Question 11

servitudes
easement
creation of an affirmative easement by prescription

Answer 11

An easement by prescription may be acquired by satisfying the elements of COAH
Continuous use for the statutory period
Open and notorious
Actual use (that need not be exclusive)
Hostile (w/o servient owner’s consent - visible w/o permission) - permission DEFEATS the acquisition of easement by prescription.

Question 12

servitudes
easement
scope of easement

Answer 12

The scope of an easement is determined by the terms that created it.

Question 13

servitudes
easement
termination of an easement (END CRAMP)

Answer 13

END CRAMP
Estoppel
Necessity
Destruction of the servient land
Condemnation of the servient estate
Release
Abandonment
Merger doctrine
Prescription

Question 14

servitudes
easement
termination of an easement (END CRAMP)
Estoppel

Answer 14

Estoppel - Servient owner materially changes position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced. (swimming pool in old road)

Question 15

servitudes
easement
termination of an easement (END CRAMP)
Necessity

Answer 15

Necessity - Easements created by necessity will expire as soon as the need ends.
However, if the easement, attributable to necessity, was nonetheless created by express grant, it persists.

Question 16

servitudes
easement
termination of an easement (END CRAMP)
Destruction

Answer 16

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

Question 17

servitudes
easement
termination of an easement (END CRAMP)
Condemnation of the servient estate

Answer 17

Condemnation of the servient estate by eminent domain.

Question 18

servitudes
easement
termination of an easement (END CRAMP)
Release

Answer 18

Release - A written release, given by the easement holder to the servient owner.

Question 19

servitudes
easement
termination of an easement (END CRAMP)
Abandoment likely to be tested

Answer 19

Abandonment - The easement holder must demonstrate by PHYSICAL ACTION the intent to NEVER use the easement again.
Nonuse or mere words are INSUFFICIENT to terminate by abandonment.

Question 20

servitudes
easement
termination of an easement (END CRAMP)
Merger doctrine

Answer 20

Merger doctrine (aka unity of ownership)
The easement is extinguished when title to the easement and title to the servient land become vested in the same person.
Note: Even though there may be later separation of title, the easement is NOT revived.

Question 21

servitudes
easement
termination of an easement (END CRAMP)
Prescription

Answer 21

Prescription - the servient owner may extinguish the easement by interfering with it in accordance to COAH
Continuous interference
Open and notorious
Actual
Hostile to the easement holder

Question 22

servitudes

license

Answer 22

definition
SoF
revocation
Classic cases

Question 23

servitudes

license - definition

Answer 23

License - the mere privilege to enter another’s land for a delineated purpose

Question 24

servitudes

license - SoF

Answer 24

Licenses are NOT subject to SoF.

You do NOT need a writing to create a license

Question 25

servitudes | license - revocation

Answer 25

Licenses are FREELY REVOCABLE, at the will of the licensor UNLESS estoppel applies to bar revocation.

Question 26

servitudes | license - classic cases

Answer 26

Tickets - Tickets create freely revocable licenses. Neighbors talking by the fence - An oral easement creates instead a freely revocable license Estoppel will apply to bar revocation ONLY when the licensee has invested SUBSTANTIAL $ or labor or both in reasonable reliance on the license's continuation.

Question 27

servitudes | profit

Answer 27

The profit entitles its holder to enter the servient land and take from it the soil or some substance of the soil (timber, minerals, etc.). The profit shares ALL EASEMENT RULES.

Question 28

servitudes | covenant

Answer 28

definition restrictive covenants (negative) covenant v equitable servitude burden/benefit

Question 29

servitudes | covenant - definition

Answer 29

Covenant - a promise to do or not do something related to land. It is UNLIKE the easement b/c it is NOT the grant of a property interest, but rather a CONTRACT or promise regarding land.

Question 30

servitudes | covenant - restrictive covenant

Answer 30

restrictive covenant - a promise to not do something related to land examples: Not build for commercial purposes, not to paint brown, not to plant fir trees affirmative covenant - a promise to do something related to land example: paint our common fence

Question 31

servitudes | covenant - covenant v equitable servitude

Answer 31

Construe a given promise as a covenant or an equitable servitude on the basis of the remedy P seeks. If P seeks $ damages, construe as a covenant. If P seeks an injunction, construe as an equitable servitude.

Question 32

servitudes | covenant - burden/benefit

Answer 32

burden/benefit When will the covenant run with the land (capable of binding successors? 1. Does the burden of A's promise to B run from A to A1? (Harder for burdens to run than benefits to stop) 2. Does the benefit of A's promise to B run from B to B1?

Question 33

servitudes covenant - burden/benefit Does the burden of A's promise to B run from A to A1? (look WITHN)

Answer 33

Elements for burden to run - WITHN Writing - promise from A to B was in writing Intent - A & B intended that the covenant would run (courts are generous in finding intent) 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 (HOA fees t&c the land) Horizontal and vertical privity - Horizontal privity refers to the nexus between A&B - they must be in succession of estate (grantor/grantee, landlord/tenant, mortgagor/mortgagee) HARD TO ESTABLISH - vertical privity refers to the nexus between A & A1. Simply requires some non-hostile nexus such as K, devise, descent. Only absent if A1 acquired interest through adverse possession Notice - A1 had notice of the promise when she took

Question 34

servitudes covenant - burden/benefit Does the burden of A's promise to B run from B to B1? WITV

Answer 34

Elements for the benefit to pass - WITV Writing - promise from A to B was in writing Intent - A & B intended that the benefit would run Touch and concern the land - The promise affects the parties as landowners Vertical privity - nonhostile nexus between B & B1 (K, devise, descent)

Question 35

servitudes | equitable servitude

Answer 35

definition creation of equitable servitude implied equitable servitude equitable defenses

Question 36

servitudes | equitable servitude - definition

Answer 36

Equitable servitude - a promise that equity will enforce against successors. It is accompanied by INJUNCTIVE RELIEF.

Question 37

servitudes | equitable servitude - creation of equitable servitude

Answer 37

To create an equitable servitude that will bind successors: (Can I get a WITN ES?) Writing - The original promise was in writing Intent - parties intended the promise would bind successors Touch and concern - promise affects the parties as landowners Notice - successors of burdened land had notice of the promise ES - equitable servitude

Question 38

servitudes | equitable servitude - implied equitable servitude

Answer 38

PRIVITY IS NOT REQUIRED to bind successors The implied equitable servitude is a general or common scheme doctrine. The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant. The two elements of common scheme doctrine: 1. When the sales began, the subdivider had a general scheme of residential development which included D's lot. 2. D lotholder had notice of the promise in the prior deeds

Question 39

servitudes equitable servitude - implied equitable servitude 3 forms of notice imputed to D

Answer 39

3 forms of notice imputed to D - AIR Actual notice - D know of common restriction Inquiry notice - neighborhood conforms to common restriction (lay of the land) Record notice - publicly recorded documents imputed to buyers

Question 40

servitudes | equitable servitude - equitable defenses

Answer 40

equitable defenses to enforcement of an equitable servitude 1. 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 NEVER enough.