RIGHTS IN REAL PROPERTY

Affirmative Easement

The right to go onto and do something on servient land

Negative Easement – General

Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible

What categories are negative easements recognized in?

Light, air, support, and stream water

How is a negative easement created?

Expressly by a writing signed by the grantor

Is there a natural or automatic right to a negative easement?

NO

Easement Appurtenant – General

An easement that benefits its holder in the physical use or enjoyment of their own land

Easement Appurtenant – What two parcels of land are involved?

(1) The dominant tenement, which derives the benefit, and (2) The servient tenement, which bears the burden

Easement in Gross – General

An easement that confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of the land

Is there a dominant tenement in an easement in gross?

NO

Easement Appurtenant – Transferability

An appurtenant easement passes automatically with transfers of the dominant tenement regardless of whether it is even mentioned in the conveyance, and the burden passes automatically with the servient tenement unless the new owner is a BFP without notice of the easement

Easement in Gross – Transferability

An easement in gross is NOT transferable unless it is for commercial purposes

What are the different methods of creating an easement?

Prescription, implication, necessity, or grant

How is an easement by grant created?

It must be

(1) memorialized in writing

(2) signed by the holder of the servient tenement unless its duration is less than one year

(3) provide an unambiguous description of the land

(4) identify the parties by name or description AND

(5) use words of intent to transfer

How is an easement by implication created?

Through preexisting use by showing (1) the use prior to the division of the parcel on the servient land was apparent and (2) the parties reasonably expected that the prior use would endure, no matter the divvying up of the parcel, because the continued use is reasonably necessary to the now dominant parcel’s use and enjoyment

How is an easement by necessity created?

When a landowner conveys a portion of land with no way out except over some part of the grantor’s remaining land

How is an easement by prescription created?

(1) Continued and uninterrupted use for the statutory period

(2) Open and notorious

(3) Actual use that need not be exclusive

(4) Hostile use without the servient owner’s consent

Termination of an Easement – Estoppel

If the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations, then the easement is terminated through estoppel

Termination of an Easement – Necessity

Easements created by necessity expire as soon as the necessity ends, unless the easement was reduced to an express grant

Termination of an Easement – Destruction

Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement

Termination of an Easement – Condemnation

Condemnation of the servient estate by government eminent domain power will terminate the easement

Termination of an Easement – Release

A WRITTEN release given by the easement holder to the servient land owner will terminate the easement

Termination of an Easement – Abandonment

An easement holder must show by physical action an intent to never use the easement again

Termination of an Easement – Merger

An easement is extinguished when title to the easement and title to the servient land become vested in the same person

Termination of an Easement – Prescription

A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession

What is a license?

A mere privilege to enter another’s land for some delineated purpose

When can a license be revoked?

At the will of the licensor

Is a license alienable?

NO

Is a writing needed to create a license?

NO

What does a failed attempt to create an easement turn into?

A license

When will estoppel bar revocation of a license?

Only when the licensee has invested substantial money or labor in reasonable reliance on the license’s continuation

What is a profit?

A profit entitles its holder to enter the servient land and take from it some resources

How can a profit be terminated?

Through surcharge by showing that the scope of the profit has become burdensome

What is a covenant?

A written promise to do or not to do something related to the land

Negative (Restrictive) Covenant

A promise to refrain from doing something related to the land

Affirmative Covenant

A promise to do something related to the land

What is the difference between a covenant and equitable servitude?

If the plaintiff wants money damages, then the promise is a covenant. If the plaintiff wants an injunction, then the promise is an equitable servitude

What are the requirements for the burden of a covenant to run?

(1) Writing

(2) Intent

(3) Touch and concern

(4) Vertical privity

(5) Horizontal privity

(6) Notice

What are the requirements for the benefit of a covenant to run?

(1) Writing

(2) Intent

(3) Touch and concern

(4) Vertical privity

Touch and Concern – Restrictive

Restrictive covenants touch and concern the land if they restrict the burdened parcel owner in her use of that parcel of land

Touch and Concern – Affirmative

Affirmative covenants touch and concern the land if they require the holder of the servient estate to do something that increases her obligations in connection with the land

Horizontal Privity

The original promising parties must be in succession of estate by sharing some interest in the land independent of the covenant, such as through a landlord-tenant, grantor-grantee, or mortgagor-mortgagee relationship when the covenant was created

Vertical Privity

There must be some non-hostile nexus between the original covenanting party and the successor in interest

What is the ONLY time there will not be vertical privity?

If the successor acquired her interest through adverse possession

Running With the Land – Notice

To be bound by a covenant, the subsequent purchaser for value must have had actual, inquiry, or record notice of the covenant at the time of purchase

What is an equitable servitude?

A promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a BFP

What is required to create an equitable servitude?

(1) Writing

(2) Intent

(3) Touch and concern

(4) Notice

Implied Equitable Servitude – General or Common Scheme Doctrine

The court will imply an equitable servitude to hold the unrestricted lot holder to the promise if (1) when the sales began, the subdivider had a general scheme of residential development which included the defendant’s lot, AND (2) the defendant lot holder had notice of the promise when it took through either actual, inquiry, or record notice

When will a court NOT enforce an equitable servitude?

(1) the neighborhood conditions have changed so significantly that enforcement would be inequitable,

(2) the person seeking enforcement is violating a similar restriction on his own land,

(3) a benefited party acquiesced in a violation of the servitude by a burdened party,

(4) a benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived, OR

(5) the benefited party fails to bring suit against the violator within a reasonable time

When can an equitable servitude be terminated?

Written release, merger, or condemnation