Termination of Easements; Servitudes

• Servitudes: 

  • Terms of Grant: end of fixed term; or specified event occurs 

• Release: Dominant owner releases servient owner from encumbrance of easement 

• Merger: One person acquires both servient and dominant parcels = easement interest merges with the fee simple interest.  

• Abandonment: Dominant owner ceases use and manifests intent to relinquish use right; mere non-use terminates prescriptive easement but not express easement.

  • If Bob prescriptively acquired the easement and Alice then the reality ceases to exist because the way you get a prescriptive easement is through use. It is a hostile taking of the right to use. In such cases, once the use stops, the prescriptive easement is extinguished, whereas an express easement remains intact unless formally terminated by the dominant owner. In contrast, if the dominant owner fails to utilize the easement but does not explicitly relinquish their rights, the express easement continues to exist, potentially creating confusion over the usage and maintenance responsibilities. This can lead to disputes between the dominant and servient tenement owners, particularly if the servient owner wishes to make changes to the property that are affected by the easement.

  • Is an easement by necessity one that is able to terminate a prescriptive easement? An easement by necessity may have the effect of terminating a prescriptive easement if it serves the same purpose, as it is created to provide a right of access that is essential for the enjoyment of a property, thereby potentially obviating the need for the prescriptive easement.  

  • Hypothetically: if a landowner establishes an easement by necessity over a path previously accessible via a prescriptive easement, the latter could be terminated due to redundancy, assuming all other legal requirements are satisfied and the easements serve the same access purpose. There was no manifestation of an intent to relinquish use by the dominant owner.

• What is abandonment?:

• Abandonment occurs when the dominant owner stops using the easement and shows clear intent to give up that right. This can be demonstrated through actions or statements, distinguishing it from mere inactivity, which does not automatically terminate an express easement.

• Example: Putting up a fence or a wall that indicates that you are no longer going to allow other people to cross your property. Covering up the options.

• Prescription: The servient owner adversely interferes with the dominant owner's use for S/L. 

  • The dominant owner may lose the right to enforce the easement if the servient owner can prove uninterrupted and adverse use for a prescribed period, typically determined by local law.

  • For the duration of the statute of limitations the easement is protected and if it is not then it is no longer allowed.

  • This is prescription against the prescription.

  • FSA: If she can interpret this unilaterally and does something hostile to his interest then, it may result in the termination of the easement, as her actions could be seen as a surrender of rights or an abandonment of the easement. In such case the servient owner has the potential to reclaim full use of the property without the burden of the easement, as the dominant owner's rights are effectively diminished. Therefore there is no more easement on Alice’s property as she was the FSA.

• Servitudes: Has an easement or an encumbrance

• Easements: Gonna take them an put it on my property; taking back the whole property and get the whole property back.

• What does alice own? When?

• If I said who owns the property, what will you automatically assume? That the person owns the property right now. Not previously. We must be careful about our assumptions.

• Thinking about the end of something is important because it helps us to understand what we actually own. What is it? The second thing you might think is how long does it last? By nature it can be shorter than forever.

• With a fee simple absolute: The absolute part is that you absolutely own the property and no one has any particular claim that conflicts with you use and enjoyment of the property.

• There are easements all over the place.

• Who is the owner of that interest?

• Certification that there was completion.

• Estoppel: A servient owner changes position relying on dominant owner’s words or actions implying abandonment.

  • In other words I can estopp you because you indicated that you were going to abandon the property.

• Condemnation: Gov’t uses eminent domain power to take servient land (whole fee simple, not just easement(; dominant owner gets compensation for lost interest.

• Recording Act Impact: Unrecorded easement lost to later BFP.

• Easement by necessity: Ends if the dominant owner gets other access to the public road

• Changed Circumstances: If change makes fulfilling easement’s purpose impossible.

  • The test is not: will I make more money if I take away this easement? Oddly enough it reduces the fair market value of your property.

Promises that can “run with interest in land:

• Original “convenanting” parties: bound by privity of contract because they made the promise.

  • Alice owns a lot with her house and teh adjacent undeveloped lot

  • Alice sells the adjacent lot to Bob w/a covenant to use only for residential purposes.

    • Alice: can sue to stop Bob from using for commercial purposes.

• Successors in interest: did not make a promise: are they bound by it?

  • Alice sells her house & lot to Cathy; Bob sells his lot to Doug.

    • Doug wants to make commercial use of the lot; can Cathy stop him?

      • YES IF: The covenant runs with the interests of Alice & Bob.

Shared Elements: Covenants & Equitable Servitudes

1. In Writing: Required for enforcement under SOF (except for Common Grantor planned developments).

   1. The assumption is made prior to this that there is already a covenant between the parties. In order for a equitable servitude to run.

2. Intent: Original parties intended promise to bind successor.

3. Touch & Concern: A promise affects the physical condition of land or controls uses of land; (need more than a promise affecting owner personally).

   1. Duration: An equitable servitude typically runs with the land and is enforceable against subsequent owners as long as it is properly recorded.

   2. Running with the Land: The servitude is tied to the property itself, not merely the individual, ensuring that future owners must comply with its terms.

   3. The court says that there is a covenant stating “Don’t ever sue me” (come back to this)

   4. What do we get out of making Touch & Concern an element?: It makes it more predictable to determine whether the servitude will be enforced in the future, thereby providing clarity for both current and prospective property owners.

   5. Additionally, this requirement helps to prevent disputes, as it establishes clear expectations regarding the rights and responsibilities associated with the property.

   6. It helps to determine the use of the covenant trying to display that the new parties did not agree to the covenant but we are still going to hold the new prospective owners responsible anyway.

      1. we hold new and prospective owners responsible anyway.

      1. Why? Money

      2. Is the market value the same regardless of the existence of this land?

      3. Some courts have said that they can determine the intent based on the third element. However it is easier to just rely on the clear language of the original agreement, which often delineates the rights and responsibilities of each party more effectively than inferred intentions.

4. Element 4: Notice: subsequent owner of burdened land knew (or had constructive notice) of promise when acquired property.

   1. Either we know because we saw it or somebody told us.

An additional element for Covenants to Run:

• Privity (of estate): sufficient relation of parties to make it fair to bind them to a promise they didn’t make

• Horizontal Privity: Between original covenanting parties: grantor & Grantee

• Vertical Privity: Between the original party and success: seller & buyer; donor & Doneee

• Remedy: Covenant enforcement is “at law'“ (remedy is money damages)

• Compare: remedy for violating equitable servitude is an injunction.