What are the 5 categories of servitudes?
- Licenses;
- Easements;
- Equitable servitudes;
- Profits; and
- Covenants
Define
easement
Right to a non-possessory property interest in land that entitles the owner to use or enjoyment of the land
Define
dominant estate
Land/property that benefits from the easement
Define
servient estate
Land burdened by the easement
Define
affirmative easement
Gives holder the right to affirmatively use the servient estate (i.e. to do something on the servient estate)
Define
negative easement
Prevents servient estate from doing something it would otherwise be allowed to do on the land
Only allowed for “LASS”:
- Light;
- Air;
- Support; and
- Stream water from an artificial flow
How are negative easements created?
Only expressly - must be signed and in writing
Define
easement appurtenant
Benefits one parcel of land (dominant estate) while burdening another (servient estate)
⭐️ Attached to the land and not a person
Define
easement in gross
Benefits a person or entity instead of a parcel of land. No dominant estate involved, only servient estate.
Ex. Billboard or power lines on servient estate
Can you transfer:
- An easement appurtenant?
- Easement in gross?
- Yes, transferred automatically b/c attached to the dominant estate. Does not need to be explicitly stated in the transfer.
- Not transferrable unless for commercial purpose
What are 4 ways in which an affirmative easement can be created?
- Prescription;
- Implication;
- Necessity; or
- Grant (signed in writing)
💡Remember “P-I-N-G”
2 ways to create an express easement?
- Grant: express grant of easement, signed and in writing by servient estate to satisfy SOF (if easement could exist for longer than one year)
- Reservation: grantor conveys title, but reserves right to easement
How do you create an easement by prescription?
Similar to acquiring land by adverse possession. Use of easement must be:
- Continuous;
- Open;
- Hostile; and
- Actual
⚠️ No exclusivity requirement
What is an easement by implication and how is it created?
Easement implied by prior use.
Exists when:
- Easement existed on a single tract of land that was subsequently severed into the servient and dominant estate;
- Prior use was continous and apparent;
- Parties intended the easement to continue; and
- Easement is reasonably necessary for enjoyment of dominant estate
When can an easement be implied without prior use?
- If lots are sold in a subdivision with a recorded plat or map
- If holder has a profit-à-prendre that makes it necessary to use the land to extract materials
What is an easement by necessity and how is it created?
Easement is absolutely necessary to access the property
Created if:
- Dominant and servient estates were once a single parcel under common ownership; and
- Severance of the parcel made the easement absolutely necessary
How do you determine the scope of an easement?
Terms or conditions that created it
What constitutes expanding the scope of an easement? Is it allowed?
Overusing the easement or going outside the scope of reasonable use.
No, not allowed to unilaterally expand the scope. Servient estate can seek injunction to prevent further violations.
When can the owner of an easement seek contribution for repairs?
Only after providing adequate notice and an opportunity for co-owners to participate in repair decisions
What are the 9 ways to terminate an easement?
- Abandonment;
- Destruction of servient estate;
- Estoppel;
- Expiration;
- End of necessity
- Merger;
- Prescription;
- Release; or
- Severance.
When does destruction of the servient estate NOT terminate an easement?
If servient owner willfully caused the destruction
How do you terminate an easement by prescription?
Continual interference with the easement for the statutory period
How do you terminate an easement by abandonment?
- Holder takes affirmative action/steps to indicate intent to abandon; and
- Actually abandons easement
⚠️ Mere words or nonuse are insufficient to terminate easement
How do you terminate an easement by estoppel?
- Easement holder leads servient estate to reasonably believe they intend to abandon the easement; and
- Servient estate detrimentally relies on the holder’s statements
How do you terminate an easement by severance?
For an easement appurtenant, any attempt to sever the easement from the dominant estate will sever the easement
How can you terminate an easement by merger?
Owner acquires fee title of underlying estate (i.e. same owner owns both the easement and the servient estate). The easement will “merge” into the title and not be revived unless by new express grant
When is an easement by necessity automatically terminated?
When the necessity ends
What happens if property is sold to bona fide purchaser without notice of the easement?
Easement is unenforceable against the BFP
Define
profit (“profit à prendre”)
Non-possessory right to enter servient estate and remove natural resources from it. Generally governed by the same rules as easements.
Ex. lumber, coal, soil
How is a profit terminated?
Misuse or overuse of natural resources
Define
license
Freely revocable, non-possessory right to use the land
Is a license transferrable?
No, will result in loss of license
Differentiate between a license and an easement
Licenses:
- Freely revocable (unless detrimental reliance or coupled with interest)
- Privilege, not an interest in land
- Can be created without consideration or writing (no SOF requirement)
Easements:
- Last for specific period or indefinitely
- Interest in land
- Must satisfy SOF
Define
covenants
Servitudes that either restrict landowners from doing certain things or impose obligations on them
Define
real covenants
Covenants concerning real property that “run with the land” (i.e. bind successors)
Differentiate between an affirmative vs. negative convenant
Affirmative: requires landowner to do something
Negative: forbids landowner from doing something
What is required for the burden of a covenant to run with the land?
- Writing: original agreement in writing;
- Intent: parties intended to bind successors (courts are liberal in finding requisite intent);
- Touches and concerns the land;
- Horizontal and vertical privity; and
- Notice: successor had notice of the covenant when she took
What is required for the benefit of a covenant to run with the land?
- Writing: original agreement in writing;
- Intent: parties intended benefit to run;
- Touches and concerns the land; and
- Successor is in vertical privity with original parties
⚠️ Horizontal privity is not required
What does it mean for a covenant to “touch and concern” the land?
Covenant affects both parties as landowners, not as individuals (very low bar)
Define
horizontal privity
Relationship between original covenant parties.
Examples:
- Grantor-grantee
- Mortgagor-mortgagee
- Landlord-tenant
⚠️ Note: Difficult to establish
Define
vertical privity
Relationship between original party and successor (contract, descent, devise)
What is the remedy for the breach of a covenant?
Monetary damages
Are racially based covenants enforceable?
Never, would violate 14th Amendment
How do you terminate a covenant?
- Release (in writing);
- Merger; or
- Condemnation
Define
equitable servitudes
Covenants enforced by equity (e.g. injunctions)
Elements for an equitable servitude
- Writing: original agreement in writing;
- Intent: original parties must intend to bind successors;
- Touches and concerns the land;
- Notice: burdened party had actual, record, or inquiry notice (not required for benefit to run)
What is an implied reciprocal negative servitude and what are the requirements?
Also called the “common scheme doctrine.” Allows owners in a subdivision to enforce restrictions on an unrestricted lot owner
Requirements:
- When sales began, developer had a common scheme for subdivision; and
- Owner of unrestricted lot had notice (actual, record, or inquiry) of the restriction
What is evidence of a common scheme?
- Recording a map detailing the scheme;
- Putting restrictions in lot deeds; or
- Letting purchasers know about the plan orally
For the purposes enforcing a reciprocal negative servitude, what is:
- Actual notice?
- Inquiry notice?
- Record notice?
- Actual: Literal knowledge of restriction
- Inquiry: Reasonable neighborhood inspection would indicate common restrictions (ie all houses are single family home)
- Record: Restriction is in owner’s chain of title
What are defenses to enforcement of equitable servitudes?
- Pervasive changes that fundamentally alter the neighborhood;
- Laches;
- Estoppel;
- Acquiescence (when party didn’t enforce the servitude on other parties, so their right to enforce may be waived)
- Unclean hands (party seeking enforcement is violating restriction on their own land)
What is the remedy for the breach of an equitable servitude?
Injunction
Define
nuisance
Unreasonable interference with use and enjoyment of land