Servitudes Flashcards
(37 cards)
Servitude
a non possessory interest in the fee of another
Easement
a non possessory interest in the land of another that gives it’s holder the right to use
3 kinds of easements
affirmative, negative, and “related mechanism”
Negative easement
Gives the owner that right to restrict the use of land owned by another person. (it is a very limited right)
How many kinds of negative easements are there and what are they?
5!!!!
- Flow of air/light ex. solar panels
- Support of building ex. excavation
- Artificial stream (NOT natural streams)
- Viewshed ex. scenic views
- Conservation (usually to preserve resources for “best use”)
Affirmative easement
Gives the holder the right to make some LIMITED use of the land possessed by another. (usually for a very particular purpose). This is the most common (modern) kind of easement.
What are the two ways in which someone can get an express affirmative easement?
- By grant: when the owner of the servient estate executes and delivers a conveyance which contains an easement to the owner of the dominant estate.
- By reservation: when a grantor conveys a deed for possessory estate but retains in THEMSELVES an easement over the servient estate.
What are the three ways in which an implied affirmative easement can be obtained?
- By necessity : must have prior common ownership of the servient estate, with no other points of access to your parcel. Lasts only until some other route of access to your parcel is not present.
- By plat: prior common ownership, plat shows and easement and you relied on it (reasonably).
- By pre-existing use: prior common ownership, prior use, and continuous and apparent use test.
5 element test to prove continuous and apparent use for an affirmative easement.
- Whether the claimant was the grantor or grantee of the dominant estate. (better to be a grantee because if mistake is made it isn’t your fault)
- The extent of the necessity of the easement.
- Whether the reciprocal benefits accrue to the grantor and grantee. (do both parties have some benefit?)
- The manner in which the land was used prior to conveyance. (if it is the same use as being sought now then it is favored)
- Whether the prior use was or might have been known to the parties. (if “apparent” parties can’t claim “not knowing”)
What is an appurtenant easement?
it “attaches” to the ownership of the dominant estate in land (it is attached to the actual dirt) and is typically freely transferable.
What is an in gross easement?
Where it attaches to the individual being conveyed the easement, it does not attach to the dirt. It is not freely transferable unless in a commercial context.
Rule of construction for in gross versus appurtenant.
Most jurisdictions favor an easement appurtenant over in gross.
Rule of construction for burden of repairs or maintenance of easements.
In absence of express language, common law apportions maintenance casts according to the amount of use by both parties.
What are the ways in which an easement can be terminated?
- By written conveyance and release
- By merger of dominant and servient estates
- By prescription (adverse interference that deprives the holder of his right to use)
- By abandonment (mere non use is usually not enough and intent to abandon which is determined by behavior)
What are the kinds of “related devices”?
- Profits - a property right that allows the holder to remove something from the land of another (i.e. usually timber, ice, etc)
- Licenses - a contractual right to use the land of another which is revocable by the owner.
When can a licensor be estopped from revoking a license?
When the licensee can prove a reasonable and detrimental reliance upon having the license.
What are the two types of promissory servitudes?
Real covenants and equitable servitudes.
What are the two major differences between the two types of promissory servitudes?
The remedy and the elements needed to be shown in order to win.
What remedy is available in an equitable servitude?
Where an injunction is granted by the court of specific performance is ordered.
What remedy is typical in a real covenant?
Damages (i.e. money)
What elements must be proven to show an equitable servitude?
The plaintiff has to show that the parties intended the servitude to bind their successors, that it touched and concerned the land, and that the successor had notice of the servitude.
What elements must be proven to show a real covenant?
The plaintiff has to show that the parties intended the servitude to bind their successors, that it touched and concerned the land, that the successor had notice of the servitude, and that there was privity of estate.
What do we look at to see the intent to bind element?
the writing to see if there is a manifestation of intent.
What do we typically look at to see the notice element?
we look to see whether the conveyance was recorded in the deed books.
