Property Unit 6 Servitudes

Easements

the right to do something on another’s property, called the servient tenement. Easements travel with the land; they are permanent. They are subject to the statute of frauds.

Easement Appurtenant

an easement is appurtenant when its holder derives a benefit from a servient tenement linked to the use and enjoyment of his own land.

i) pass automatically with the dominant tenement

Easement in Gross

easements are in gross where its holder derives a purely personal or commercial gain because of the easement, not linked to the easement holder’s use and enjoyment of the land; in fact, the holder may not even own the land.

Affirmative Easement

An affirmative easement gives the dominant tenement some right to do something with the servient tenement’s land

Negative Easement

A negative easement prohibits a landowner from doing something with their land that would otherwise be permissible.

Easement by Grant

An easement by grant arises when the grantor intentionally creates an easement through a valid written conveyance (deed of easement), which, if appurtenant, runs with the land and binds successors. Subject to the statute of frauds.

Easement by Necessity

An easement by necessity will be implied when the grantor conveys part of the land without a way out over grantor’s remaining land.

the easement by necessity persists only so long as the necessity persists; once it is no longer needed, it ceases to exist

Acronym for Creating Easements

PING - Prescription, Implication, Necessity, and Grant

Easement by Implication

An easement by implication arises when, upon severance of (1) commonly owned land, (2) a preexisting use to the division was (3) apparent, (4) continuous, and (5) reasonably necessary to the enjoyment of the dominant parcel, indicating the parties intended the use to continue.

Easement by prescription

A prescriptive easement arises where use of land is (1) open and notorious, (2) continuous for the statutory period, and (3) adverse or hostile to the servient owner, giving the user a nonpossessory right to continue the use.

Ways to Terminate an Easement (Acronym)

END CRAMP
Estoppel, Necessity, Destruction, Condemnation, Release, Abandonment, Merger, Prescription.

Termination of Easements: Abandoment

abandonment requires some physical action on the part of the easement holder that shows they will never use it again.

Abandonment is final, when someone abandons an easement, it cannot be repurposed.

Termination of Easements: Estoppel

Easements may also be terminated by estoppel. This is where the servient owner materially changes their position in reliance on the easement holder’s assurances that the easement will no longer be enforced.

Termination of Easements: Destruction

Destruction of servient tenement will also terminate the easement, other than by willful destruction of the owner.

Termination of Easement: Condemnation

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

Termination of the Easement: Release

Release, in writing, given by the easement holder to the servient landowner, will end the easement.

Termination of the Easement: Merger

The merger doctrine holds that when the title to the easement and the servient tenement vest in the same person, the easement is terminated.

Termination of the Easement: Prescription

An easement is terminated by prescription as well when the servient owner interferes with it in accordance with the elements of adverse possession. It need not be exclusive. An easement is extinguished by prescription where the servient estate owner’s adverse interference with the easement is open, notorious, and continuous for the statutory period, effectively blocking the easement holder’s rights.

Licenses

1. A license is a mere privilege to enter another’s land for a limited purpose. Licenses may be oral. A license allows you to enter another’s land without being deemed a trespasser.

2. licenses are freely revocable

3. licenses are not subject tot he statute of frauds

Profits

The profit entitles its holder to enter the servient tenement and take form it the soil or some other resource, such as minerals, timber, oil, fish, or wildlife.

The profit shares all the rules of easements.

Real Covenant

Promise to do something or not do something on land

Affirmative Covenant

Promise to do something with land

“i promise to maintain in good repair out common fence”

“I promise to pay annual dues to our homeowner’s association”

Negative Covenant

Promise not to do something with land.

“i promise not to build foir commercial purposes”

“I promise not to place a petting zoo on my land”

Covenant v. Equitable Servitude

if the plaintiff seeks money damages — construe the promise as a covenant

Horizontal Privity

requires that the promise was made between the grantor and the grantee; in other words, the contracting parties have a grantor/grantee relationship. They had “succession of estate.”

Vertical privity

requires a peaceful connection between A and A-1 (all subsequent owners); it is presumed to exist unless A1 took by adverse possession

Actual Notice

when A-1 took, she was literally informed of the existence of the covenant

Inquiry Notice

if the appearance of the premises should have given notice of the presence of the covenant, A-1 would be charged with such notice, even though she may not have inspected.

Record Notice

is the form of notice that is attributable to parties based on publicly recorded documents. If the covenant w2as properly recorded within A’s chain of title, A-1 would be charged with notice of it, regardless of whether A-1 did a title search.

For the burden to run with the land, it must go

WITHN

1. Writing

2. intent that the promise would run

3. the promise must touch and concern the land

4. there must be horizontal and vertical privity

5. the successor must have had notice

for the benefit to run with the land, it must be:

WITV:

1. Writing

2. Intent that it run

3. it must touch and concern the land

   1. there must be vertical privity only

Termination of Covenants

1. Merger (same as easements)

2. Release

3. Acquiesce – when the plaintiff has failed to enforce the servitude against other breaches and then seeks to enforce against the defendant

4. Abandonment

5. The equitable doctrine of unclean hands – the court will refuse to enforce a servitude the plaintiff has previously violated.

6. The equitable doctrine of laches – unreasonable delay by the plaintiff to enforce the servitude against the defendant, causing him prejudice.

7. Estoppel – where the defendant has relied upon the plaintiff’s conduct, making it inequitable to enforce it.

8. Eminent domain

9. Prescription

The Equitable Servitude

the equitable servitude is a promise that equity enforces against successors to the originally promising party. The covenant and equitable servitude are two sides of the same coin; here, equitable relief, usually an injunction, is available instead of damages.

To bind successors to an equitable servitude:

1. The original promise was in writing

2. The parties intended it would bind successors

3. The promises must touch and concern the land

4. The successor to the originally promising party had notice when they took

5. Privity is not needed to bind successors to an equitable servitude.

Implied ES/Common Scheme Doctrine

It arises when a subdivider conveys lots through deeds that contain a common restriction, but later conveys one or more remaining lots through deeds without the restriction. The elements include:

1. When the sales began, the subdivider (A), had a general scheme of residential development which included the defendant lot in question;

2. The defendant (B) must have had notice when he took.  This includes actual, inquiry, or record notice.

Defenses to an equitable servitude - changed conditions

One bound by an ES may be released due to changed conditions. The bound party must show that the change alleged is so pervasive that the entire area’s essential character has been forever changed.

Common Interest Communities

Communities organized by a homeowner’s association. It is shared living with common rules and private governance.