Servitudes

What is an easement?

The grant of a nonpossessory property interest that entitles its holder to some form of use/enjoyment of another's land, called the servient tenement.

What is an affirmative easement?

The right to do something on the servient land.

What is a negative easement?

The right to prevent the servient landowner from doing something that would otherwise be permissible

What are the categories of negative easements?

Generally only 4: LASS (LIGHT, AIR, SUPPORT, STREAM water from artificial flow); minority, including California, adds SCENIC VIEW

How can a negative easement be created?

Expressly, by a writing signed by the grantor, only.

What is an appurtenant easement?

Benefits its holder in his physical use or enjoyment of his property; IT TAKES TWO - dominant and servient property

What is an easement in gross?

Confers upon holder only some personal or pecuniary advantage that is not related to his use or enjoyment of the land; ONLY 1 - servient parcel is involved

How is an easement appurtenant transferred?

It passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance. It passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice

How is an easement in gross transferred?

It can't be, unless it is for commercial purposes

How is an affirmative easement created?

PING (PRESCRIPTION, IMPLICATION, NECESSITY, GRANT)

What is an easement by grant?

An easement to last more than one year, in a writing called the deed of easement

What is an easement by implication?

An easement whose previous use was apparent and which parties expected would survive division because it is reasonably necessary to the dominant land's use and enjoyment

What is an easement by necessity?

An easement that is implied because of necessity/public policy - e.g., landlocked parcel.

What is an easement by prescription?

An easement acquired by satisfying the elements of adverse possession (COAH - CONTINUOUS use for statutory period, OPEN & notorious, ACTUAL use; HOSTILE use - w/o servient parcel owner's consent).

How is the scope of the easement determined?

By the terms of the grant or the conditions that created it.

How is an easement terminated?

END CRAMP: (ESTOPPEL- servient owner materially changes position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced; NECESSITY - easements by necessity expire when the need ends (unless formalized in an express grant); DESTRUCTION of servient land, other than through willful conduct of the servient owner; CONDEMNATION of the servient estate; written RELEASE given by easement holder to servient owner; ABANDONMENT demonstrated by physical action (not mere nonuse); MERGER doctrine (aka unity of ownership); PRESCRIPTION - servient owner may extinguish easement by adverse possession - COAH)

What is a license?

Privilege to enter another's land for some delineated purpose - e.g., ticket, promise made by neighbors talking by the fence (oral easement)

Do you need a writing to make a license?

No, licenses aren't subject to the Statute of Frauds

How is a license terminated?

Licenses are freely revocable at the will of the licensor, unless estoppel applies to bar revocation

When does estoppel bar revocation of a license?

Only when licensee has invested substantial money/labor/both in reasonable reliance on the license's continuation.

What is a profit?

The right to enter servient land and take soil or a substance from the soil (e.g., minerals, timber, oil)

How are the rules of profits determined?

Profits share all the rules of easements

What is a covenant?

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

How is a covenant different from an easement?

An easement is the grant of a property interest; a covenant is a contractual limitation or promise regarding land.

What is a restrictive covenant?

A promise to refrain from doing something related to land (I promise not to build for commercial purposes)

What is an affirmative covenant?

A promise to do something related to land (I promise to plant 37 trees)

How is a covenant different from an equitable servitude?

The remedy for breach of covenant is monetary damages; the remedy for breach of equitable servitude is an injunction

How do analyze a covenant question?

Two questions: does the burden of A's promise to B run from A to A-1 (WITHVN); does the benefit of A's promise to B run from B to B-1?

Elements necessary for a burden to run with the land?

WITHVN (original promise in WRITING, INTENT (courts are generous), TOUCH and concern the land - affect parties as landowners; HORIZONTAL privity between originally promising parties - grantor/grantee, landlord/lessee, mortgagor/mortgagee; VERTICAL privity - some non-hostile nexus between A and A-1, such as contract, devise, descent (absent if A-1 acquired through adverse possession), A-1 had NOTICE of the covenant when she took)

Elements necessary for a benefit to run with the land (and B to have standing to make the claim)

WITV (original promise in WRITING, INTENT by original parties, TOUCH and concern the land, VERTICAL privity)

What is an equitable servitude?

A promise that equity will enforce against successors

How is an equitable servitude created?

WITNES (WRITING - generally but not always, INTENT, TOUCH and concern, NOTICE to successors of the burdened land) - privity is not required

What is a general common scheme?

A situation that creates an implied equitable servitude - when sales began, subdivider had a general scheme of residential development that included D's lot; D had notice (AIR) of the promise contained in the prior deeds

What types of notice of an equitable servitude may be potentially imputed to a D?

AIR (ACTUAL notice, INQUIRY notice - the neighborhood conforms to the common restriction, RECORD NOTICE - imputed based on public documents)

What are the parameters of record notice?

Some courts hold a subsequent buyer on record notice of the contents of prior deeds transferred to others by a common grantor. Better view (less burdensome to D's title searcher) is that subsequent buyer does not have record notice of the contents of those deeds.

What is a defense against the enforcement of an equitable servitude?

Changed conditions - so pervasive that the entire community is altered <wording>

How does a possessor's state of mind affect adverse possession?

It is irrelevant

When can tacking help with adverse possession?

When there is privity among adverse possessors - any non-hostile nexus

When is tacking not allowed with adverse possession?

When there has been an ouster

How does a landowner's disability affect adverse possession?

The statute of limitations will not run against a true owner who is afflicted by a disability at the start of the adverse possession

What are common disabilities that can affect adverse possession?

Insanity, infancy, imprisonment

Would leasing someone's property count as "actual" use toward adverse possession?

Yes, because that's the kind of use a true owner would make

When does possession of part of a tract suffice for adverse possession?

Possession of part of a unitary tract is sufficient adverse possession of the whole if there is a reasonable proportion between the part actually possessed and the whole, and if the possessor has color of title.

When does possession of part of a tract suffice for adverse possession?

Possession of part of a unitary tract is sufficient adverse possession of the whole if there is a reasonable proportion between the part actually possessed and the whole, and if the possessor has color of title.