Property_Servitudes

Negative easement must be created expressly

(BAR!) NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY, BY WRITING SIGNED BY THE GRANTOR. THERE IS NO NATURAL OR AUTOMATIC RIGHT TO A NEGATIVE EASEMENT! On bar, the easement will usually be about light and a building going up and blocking light.

Licenses

1. A mere privilege to enter another's land for some delineated purpose. 2. No writing required because not subject to SOF; a much more informal species of servitude. 3. Licenses are freely revocable at will of licensor, unless estoppel applies to bar revocation.

Creation of an Equitable Servitude (WITNES)

1. WRITING: the original promise was in writing. 2. INTENT: the parties intende that the promise would bind successors. 3. TOUCH AND CONCERN: the promise affects the parties as landowners. 4. NOTICE: the successors of burdened land had notice of the promise. NOTE PRIVITY IS NOT REQ'D TO BIND SUCCESSORS.

TERMINATION of an easement: RELEASE

A written release, given by the easement owner to the servient holder, will end the easement.

Appurtenant v. In Gross

An easement is appurtenant to land when it benefits the holder in his physical use or enjoyment of his property. It takes two baby. An easement is held in gross when it gives its holder only a personal or commercial gain that is not related to his use and enjoyment of his land. Here, servient land is burdened, but there is no dominant tenement.

Appurtenant Easement

An easement is appurtenant when two parcels of land are involved: A dominant tenement which derives the benefit of the easement. A servient tenement which bears the burden of the easement. i.e.: A grants B a right of way across A's land (1—the servient tenement), so that B can more easily reach B's land (2—the dominant tenement). B has an easement appurtenant to B's dominant tenement. A's land is serving B's easement. Transferability: Appurtenant easements transfer automatically w/the dominant tenement, regardless of whether it is even mentioned w/the conveyance.

Equitable Defenses to Enforcement of Equitable Servitudes

Changed Circumstances. The changed circumstances are so pervasive that the ENTIRE AREA has changed. Mere pockets of limited change are not sufficient.

Profits

Entitles the holder to enter the servient land and take from it the soil, timber,or some substance from the land such as minerals, timber, and oil. CAN be extinguished if they are overused! Easements and profits share ALL the same rules.

Licenses (Revocation)

Estoppel will apply to bar revocation, but only when licensee has invested substantial money or labor or both in reasonable reliance on the license's continuation. Licenses are normally revocable at will, but if a licensee invests substantial amount of money or labor in reliance on the license, it can become an easement by estoppel, but lasts ONLY UNTIL the licensee gets sufficient benefit to recoup his investment.

TERMINATION of an easement: ESTOPPEL

In estoppel the servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced. Ex- A tells B that A will no longer be using her right of way across B's parcel. In reasonable reliance, B builds a swimming pool on B's parcel, thereby depriving A of the easement. In equity, A is estopped from enforcing it.

Elements Necessary for the Burden to Run

Remember "WITHN" 1) WRITING: the original promise between A and B must be in writing 2) INTENT: the original parties A and B intended that the covenant run 3) TOUCH AND CONCERN THE LAND: the promise must affect the parties' legal relations as land owners, and not simply as members of the community at large (Ex: covenants to pay money to be used in connection with the land (such as homeowners association fees) and covenants not to compete) 4) HORIZONTAL AND VERTICAL PRIVITY: are both needed to run with the land 5) NOTICE: both parties must have notice of the promises

Easement

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. Easements can be affirmative or negative. Examples: the privilege to lay utility lines on another's land; the easement giving its holder the right of access across a tract of land.

Negative Easement

The 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: Remember LASS 1) Light (sunlight) 2) Air (free flow of air) 3) Support (subadjacent support) 4) Streamwater from an artificial flow These are sometimes called restrictive covenants

Scope of an easement

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

TERMINATION of an easement: PRESCRIPTION

The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. Ex- long continued possession and enjoyment of the servient tenement in a way that would indicate to the public that no easement right existed will end the easement right.

Classic License cases

The ticket cases: Tickets create freely revocable licenses. Example: You purchase tickets to theater, all other ticket holders are admitted except you. Can they do that? Yes. Neighbors talking by the fence: Nothing good comes when neighbors are talking by the fence. Oral promises only create freely revocable licenses. Example: Suppose A talking by fence w/B says "You can have that right of way across my front lawn." That oral easement is unenforceable—it violates the SOF. Instead, this oral easement creates a freely-revocable license.

Elements necessary for the benefit to run

To determine whether the benefit of A's promise to B runs from B to B1 (this is to determine whether B1 has standing): Remember "WITV" 1) WRITING 2) INTENT 3) TOUCH AND CONCERN 4) VERTICAL PRIVITY Horizontal privity is not required for the benefit to run. If the burden succeeds in running then so does the benefit.

Determining whether Covenant or Equitable servitude

To determine whether to construe the given promise as a covenant or as an equitable servitude look to the basis of the remedy that the P seeks. If P seeks money damage then construe as a covenant. If P seeks an injunction then construe as an equitable servitude.

Vertical Privity

Vertical privity refers to the nexus between A and A1. It simply requires some nonhostile nexus such as contract, devise, descent. The only time that vertical privity will be absent is if A1 acquired her possession through adverse possession (or life estate situation see below). To be bound, the successor in interest to the covenanting party must hold the ENTIRE DURATIONAL INTEREST held by the covenantor at the time she made the covenant. Example of NO vertical privity: A, who owns Blackacre and Whiteacre in fee simple absolute, sells W to B and in the deed, covenants for herself, her heirs, and her assigns to contribute one half the expense of maintaining a common driveway between Blackacre and Whiteacre. A then transfers Blackacre to C "for life" and keeps a reversionary interest for herself, A cannot enforce a covenant against C because C does not possess the entire interest held by her predecessor in interest, A, at the time A made the promise.

Affirmative Easement

An affirmative easement gives another the right to do something on servient land

PRESCRIPTIVE EASEMENT (Same As Adverse Possession)

An easement may be acquired by satisfying the elements of adverse possession (except doesn't need to be exclusive) (COAH) C = Continuous use for given statutory period O = Open and Notorious use A = Actual use H = Hostile use, meaning w/out the servient owner's permission NOTE: Unlike adverse possession, the use need NOT be exclusive. The user of a common driveway may acquire a prescriptive easement even though the owner uses it also.

TERMINATION of an easement (END CRAMPS)

An easement may be created in perpetuity or for a limited amount of time: (END CRAMPS) 1) estoppel, 2) necessity (unless by express grant), 3) destruction of servient land, 4) condemnation of the servient estate, 5) release by the easement owner, 6) abandonment (must be physical action) 7) merger doctrine, 8) prescription.

EASEMENT BY NECESSITY

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 his remaining land. This type of easement terminates when the necessity terminates (unless it is by express grant).

EASEMENT BY GRANT

An easement to endure for more than one year must be in a writing that complies w/the formal elements of a deed b/c of the SOF. The writing to evidence is called a deed of easement.

Equitable Servitude

An equitable servitude is a promise that equity will enforce against successors. It is accompanied by injuctive relief.

TERMINATION of an easement: CONDEMNATION

Condemnation of the servient estate by eminent domain will end the easement.

Negative Covenants

Covenants can be negative (known as restrictive covenants): the restrictive covenant is a promise to refrain from doing something related to land. (ex- I promise not to build for commercial purposes)

TERMINATION of an easement: DESTRUCTION

Destruction of servient land, other than the willful conduct of the servient owner will end the easement.

TERMINATION of an easement: NECESSITY

Easements by necessity expire as soon as the need ends. However, if the easement attributable to necessity, was nonetheless created by express grant, it won't end when the need ends.

Horizontal Privity

Horizontal privity refers to the nexus between A and B and the original parties. It requires that they the original parties shared some interest in the land dependent of the covenant meaning that they were in a 1) grantor/grantee, 2) LL/T, or 3) morgagor/mortgagee relationship. This is hard to establish. The absence of horizontal privity is usually the sticking point and is the impediment to the burden succeeding to running with the land. Example of NO horizontal privity: two neighbors, neither having rights in the other's land: A promises B. for valuable consideratoin "for herself, her heirs, successor, and assigns" that A's parcel will never be used other than for residential purposes. Because there is NO horizontal privity, the successors in interest to A will NOT be bound because A and B shared no interest in land at the time the covenant was made.

AFFIRMATIVE EASEMENTS (4 Ways to Get One)

PING 1. Prescriptive 2. Implication 3. Necessity 4. Grant

EASEMENT BY IMPLICATION

Sometimes called the easement implied from existing use. The law may imply an easement on B's behalf if: 1) the previous use had been apparent, and 2) the parties expected that the use would survive division b/c it is reasonably necessary to the dominant land's use and enjoyment. A owns 2 lots. Lot 1 is hooked to sewer drain located on Lot 2. A sells 1 to B, w/ no mention of B's right to continue to use the drain on A's Lot 2. The law may imply an easement on B's behalf if: 1) the previous use had been apparent, and 2) the parties expected that the use would survive division b/c it is reasonably necessary to the dominant land's use and enjoyment.

Affirmative Covenants

The affirmative covenants are a promise to do something related to land (ex- I promise not to paint our common fence). This is a contract related to Blackacre.

Covenants Running with the Land (Real Covenants)

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 land. Subsequent owners of the land may enforce or be burdened by the covenant. To run with the land, the burden and the benefit must be analyzed separately.

TERMINATION of an easement: ABANDONMENT

The easement holder must demonstrate by physical action the intent to never use the easement again. NOTE: this requires PHYSICAL ACTION by the easement holder. Mere nonuse, or mere words, are insufficient to terminate by abandonment.

Equitable Servitudes: NOTICE imputed to Def

There are three forms of notice potentially imputed to the defendant (think AIR): 1) Actual Notice, meaning the Def had literal knowledge of the promises in the prior deeds. 2) Inquiry Notice, meaning the neighborhood conforms to the common restrictions. 3) Record Notice, meaning the form of notice imputed to buyers on the basis of public documents. (Crts are split about meaning of record notice: 1. a subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor; 2. a subsequent buyer does NOT have record notice of the contents of such prior deeds.

TERMINATION of an easement: MERGER DOCTRINE

This is also known as unity of ownership. The easement is extinguished when title to the easement and title to the servient land become vested in the same person. When dominant and servient lands have same owner. NOTE: if complete unity of title is achieved, the easement is FOREVER extinguished. Even though there may be later separation of title the easement is not revived. A new easement must be created from scratch.

Implied Equitable Servitude (general or common scheme doctrine)

Under the general or common scheme doctrine, a court will imply a RECIPROCAL NEGATIVE SERVITUDE to hold the unrestricted lot holder to the restrictive covenant if two elements are satisfied: 1. When the sales began, the subdivider (A) had a general scheme of residential development that included the Def's lot. 2. The Def lot holder had notice of the promises in the prior deeds.

In Gross Easement

i.e.: Right to place a billboard on servient land requires an easement in gross. Right to lay power lines on another's land, or to fish in another's lake, etc. —all easements in gross. Servient land is burdened, but there is no dominant tenement. An easement in gross is not transferable UNLESS it is for a commercial purpose: i.e: A has easement entitling her to swim in B's lake. This is not freely assignable or transferable. If Starkist has easement entitling it to fish in B's lake for bait, that is transferable because it is commercial.