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105 Cards in this Set
- Front
- Back
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Easement or profit
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right arising from a grant of a right by one landowner to another landowner
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Real covenant or equitable servitude
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promise respecting the use of land by one landowner to another landowner.
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Easement creation
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1. Express agreement
2. Estoppel 3. Implication from an existing use when land is divided 4. By necessity when land is divided 5. Prescription |
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Real covenants
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privity of estate is required for the covenant to run. Remedy for breach is damages
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Equitable servitides
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Can be implied from a general plan. Privity of estate is not required, but the covenant must touch and concern the land. Remedy is an injunction or enforcement of a lien.
Notice to the purchaser is required. No notice= not bound by the covenant |
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Affirmative easement
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Negative easement
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Easement Appurtenant
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attached to the dominant tenement and ordinarily passes with the tenement to any subsequent owner of the tenement. However, if the grant of an easement creates appropriate limiting term, it will not pass to subsequent owners of the dominant tenement.
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Easement in gross
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Can usually be assigned if the parties so intend.
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Appurtenant easement
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cannot be separated from its dominant tenement and turned into an easement in gross, unless the owners of the dominant and servient tenements make a new agreement permitting that
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When language is ambiguous
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the courts favor an easement appurtenant due to intent: parties usually have in mind that the easement will benefit a tract of land, and a easement appurtenant increases the value of the dominant tenement presumably more than it decreases the value of the servient land
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Interest in land
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Profit
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License
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License v. Easements
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courts usually construe agreements which do not give A exclusive possession of any definite space as licenses
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Irrevocable licenses- License coupled with an interest
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Estoppel
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Length a license is irrevocable
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Assignability of licenses
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They can be assignable if the parties so intend
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Creation of an easement
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Easement by grant
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Must satisfy the Statute of Frauds- requires a written instrument signed by the grantor. If the grantor does not sign a written instrument but instead orally gives the grantee permission to enter the land, the grantee has a license to use the land.
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Exceptions to the Statute of Frauds
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Fraud, part performance, estoppel, easements by implication and prescription, and easements lasting less than one year
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Duration of Easements
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can be created to endure for a person's life, for a period of years, or forever. If it endures forever, it is called an easement in fee simple.
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Ambiguous language
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Usually a grant of limited use, or for a limited purpose, or of an identified space without clearly marked boundaries creates an easement.
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Fee simple construction favored
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courts presume the grantor conveys the largest interest he can convey, unless expressly limited.
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Creation by reservation
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Exception v, reservation
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A reservation is the regrant of a new easement, not previously existing. An exception is a provision in a deed that excludes from the grant some preexisting right.
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Easements should be reserved for grantors only
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Under the majority view, an easement can be reserved only for the grantor. An attempt to reserve an easement for anyone else will likely be held void.
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Creation by implication
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created by operation of law, not by a written instrument. It is an exception to the Statute of Frauds. An easement
can be implied only in very narrowly defined circumstances indicating that the parties intended an easement or that an easement is a necessity. |
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Two kinds of implied easements
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(i) an intended easement based on an apparent use existing at the time the servient tenement is separated from the dominant tenement, and (ii) an easement by necessity.
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Easement implied from existing use
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If, prior to the time a tract of land is divided into two lots, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part” and which the court finds the parties intended to continue after the tract is divided, an easement may be implied.
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Implied only over land granted or reserved when tract divided
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An easement can be implied only over land granted or reserved when a tract is divided into two or more parcels.
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Created by implied grant to the grantee
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If an easement is implied in favor of the grantee
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Easement is implied in favor of the grantor
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easement is created by implied reservation to the grantor.
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An easement in gross will not be implied.
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An easement by implication must benefit a dominant tenement created by dividing a tract into two or more lots.
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Quasi easement
(implied easements) |
At the time a tract is divided into two or more lots, a use of one part of the tract must exist from which it can be inferred that an easement permitting its continuation was intended
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Quasi easement- requirement 1
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To have a quasi-easement, the previous use must be apparent. It is apparent if a grantee could, by a reasonable inspection of the premises, discover the existence of the use (e.g., a “beaten path”). “Apparent” does not mean the same thing as “visible”; a nonvisible use may be apparent. Thus, e.g., underground drains may be apparent even though not visible, if the surface connections would put a reasonable person on notice of their presence.
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Quasi easement- requirement 2
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The previous use must be continuous, not sporadic. The re-
quirement of continuity is based on the idea that the activities should be such that there is a great probability that the use was known to the parties at the time of the grant, from which an intent can be inferred that the parties wanted the use to continue. Thus, courts interpret “continuous” to include a permanent physical change in the land for a particular use. Thus, the improvement of a roadway by paving is a perma- nent change of the land, and hence a continuous use, although the roadway is not used every day. |
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Reasonable necessity
(implied easements) |
The easement must be necessary for the enjoyment of the claimed dominant tenement. Necessity is an important circumstance in implying an easement on the basis of an existing use, because it probably affects the intention of the parties as to whether the existing use is to continue. In most jurisdictions reasonable necessity, and not strict necessity, is required. This is a flexible requirement. Relevant factors in determining reasonable necessity include cost and
difficulty of establishing a new road or other alternate use, and whether the price paid reflects the expected continued use of the servient portion of the original tract |
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Easement by necessity
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An easement by necessity is implied if the owner of a tract of land divides the tract into two lots and by this division deprives one lot of access to a public road or utility line. An easement of way over the lot with access to the public road or utility line is implied. Usually an implied easement of way by necessity must be strictly necessary and not just a more convenient access. The doctrine of easements by necessity
rests either on the ground that public policy requires a way of access to each separate parcel of land or on the ground that, because access is essential to use, the parties intended to create an easement but overlooked putting it in the deed. |
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Implied over landlocking parcel
(Easement by necessity) |
An easement by necessity is implied only when land is divided. The necessity must exist when the tract is severed. The easement is implied only over that portion of the divided tract that blocks access to a public road from the landlocked parcel. An easement by necessity cannot be implied over land that was never owned by the common grantor of the dominant and servient tenements.
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Easement by necessity
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Does not require an existing use at the time a tract is divided into two lots
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Termination by necessity
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Easements by necessity only last so long as they are necessary. It terminates when the necessity ceases
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Elements for easements by prescription
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(1) Open and notorious, (2) adverse and under a claim of right, (3) continuous and uninterrupted throughout the requisite period.
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Open and notorious
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The use must be made without any attempt at concealment
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Under a claim of right
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Not with the permission of the landowner. Prescriptive rights cannot be acquired where the use is permissive.
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Continuous use
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The adverse use must be continuous, but this does not mean constant. Indeed, the use of an easement ordinarily involves only periodic use. Continuity requires a continuous claim of right and periodic acts which, given the nature of the type of easement claimed, give notice to the owner that an easement is being claimed. Thus, driving or walking across another’s land, whenever headed in that direction, is sufficient to establish a prescriptive easement, even though this is not done every day.
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Tacking
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Tacking is allowed in prescription, just as it is allowed in ad-
verse possession. One prescriptive user can tack on to his period of use the prescriptive use of a predecessor in interest. Transfer of the dominant tenement establishes the necessary privity if the grantor intends to transfer with it the use which is ripening into an easement. |
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Uninterrupted use
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If the adverse use is interrupted by the owner of the land being used, the prescriptive period ends. If the adverse use begins again after interruption, a new prescriptive period begins.
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Public easements
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In most jurisdictions, the public at large can acquire a public easement in private land by prescription if members of the public use the private land in a manner meeting the requirements for prescription
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Public Easements- customary view
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In New Jersey, the public may use the privately owned dry sand area to the extent needed in the exercise of the public’s right under the public trust doctrine to use the wet sand area and the water. [Matthews v. Bay Head Improvement Association
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Express easement- easement of way
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essential to the use and productivity of land. Given a scope that permits it to meet the needs of the dominant tenement as it normally develops. It may be used in ways reasonably foreseeable by the parties or, if not foreseeable, by ordinary means of transportation as those means normally evolve. There is a strong public policy that land have access necessary to make it useful under contemporary conditions.
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Prescriptive easements- how created
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It is more difficult to increase the burden of an easement by prescription than any other kind of easement. The uses that give rise to the easement can continue, but there is no basis for assuming the parties intended the easement to accommodate future needs.
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Subdivision of a dominant tenement
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If the dominant estate is subdivided, each subdivided lot has aright to use easements appurtenant to the dominant estate. However, the servient estate is not to be burdened to a greater extent than was contemplated at the time the
easement was created and is necessary to accommodate normal development of the dominant estate |
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Nonexclusive easement
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Easement is one that is enjoyed both by the easement
holder and the servient owner |
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Exclusive easement
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An easement in gross is exclusive if the holder has the exclusive right to enjoy it (e.g., the only person who can hunt). The owner of an exclusive easement can divide it and transfer it to others who can use it independently, unless the original grant prohibits this.
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Transfer of easements
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When the dominant tenement is transferred, any easements appurtenant are transferred with it, unless the appurtenant easement is also personal in its terms
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Easement appurtenant
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thought of as "attached" to the dominant land and benefits the possessor of that land
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Assignability of an easement in gross
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the benefit of a commercial easement in gross is assignable, and a non-commercial easement in gross is assignable if the parties so intend.
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Termination of easements- by unity of title
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if the title of the easement and the title to the servient tenement come into the hands of one person, the easement is extinguished.
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Termination of easements- by act of dominant owner
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owner to an easement may release the easement to the servant owner by a written instrument
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nonuse
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nonuse of an easement does NOT extinguish an easement
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Abandonment
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If the owner of an easement acts in such a way as to indicate an unequivocal intent to abandon the easement, the easement is abandoned. This can include an oral release or nonuse coupled with failure to maintain the easement or permitting the easement to be blocked by others.
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Destruction of servient tenement
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an easement in a structure is terminated if the building is destroyed without fault of the servient estate. If the building is destroyed by the intentional act of the servient owner, the easement is not extinguished.
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Negative easement
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gives the easement holder the right to prevent the servient owner form using her land in some way. Cannot arise by prescription.
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4 types of negative easements
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1. for light
2. for air 3. for subjacent or lateral support 4. for the flow of an an artificial stream |
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Affirmative promise
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promise to do something
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Negative promise
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promise not to do something
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money damages
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must sue in law
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injunction or specific performance
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must sue in equity
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Real covenant
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runs with the land at law. it is enforceable at law by a successor owner of the promisee's land.
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Personal liability only
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a real covenant gives rise to personal liability only. it is enforceable only by an award of money damages, which is collectible put of general assets of the defendant
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Equitable servitude
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a covenant enforceable in equity by or against successors to the land of the original parties.
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Creation of a covenant
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has to be in writing and will not be implied, nor can it take rise by prescription
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Grantee bound without signing
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most deed are signed only by the grantor. The grantee is bound by any covenants in the deed to be performed by the grantee.
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Burdened tract
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analogous to the servient tenement under the law of easements
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Benefited tract
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analogous to the dominant tenement under the law of easements
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Requirements for the burden of the covenant to run at law
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(1) the parties must intend that successors to the promisor be bound by the covenant (2) there must be (at least in some states) privity of estate between the original promisor and promisee as well as privity of estate between the promisor and his assignee (3) the covenant must touch and concern the land (4) a subsequent purchaser of the promisor's land must have notice of the covenant
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Requirements for the benefit of the covenant to run at law
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(1) the parties must so intend, (2) some form of privity of estate may be required (3) the benefit must touch and concern land owned by the promisee.
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Horizontal privity of estate
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a specified relationship btwn the original promisor and promisee
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Vertical privity
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A specified relationship between an original party to the contract and an assignee. the party suing or being sued succeeded to the estate of the original promisee or promisor.
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Majority view of privity of estate
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the covenant in a conveyance of an interest in land. Priviity of estate is present where the promise is contained in a conveyance of the fee simple, i.e., where one of the original parties to the promise succeeds to an estate previously owned by the other party.
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Running of the burden
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For the burden to run to a successor owner of the land, the successor must be in vertical privity of estate with the original promisor
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Exception- HOA's
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Exception- HOA's may sue to enforce the benefit of a covenant even though the association succeeds to no land owned by the original promisee. The HOA is regarded at the agent of the real parties in interest who own the land.
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Restatement of Servitudes view
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discards requirement of vertical privity for both the burden and benefit. Instead, it draws a distinction btwn negative covenants and affirmative covenants.
The burdens and benefits of affirmative covenants run to persons who succeed to an estate of the same duration as owned by the original parties. But affirmative covenants do not run to persons who hold lesser estates than those held by the original parties to the covenant. |
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For the burden of the covenant to run at law
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there must be horizontal privity and vertical privity
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For the benefit to run
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generally only vertical privity is required
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Touch and concern
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for the burden to run with the burdened land, the covenant must touch and concern the burdened land. Likewise, for the benefit to run with the benefited land, the covenant must touch and concern the land
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Notice
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a bona fide purchaser of the burdened land is not bound at law if he has no notice of the covenant
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Liability
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The covenantor has no liability after assignment
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Equitable servitude
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a covenant- whether or not running w the land- that equity will enforce against assignees of the burdened land who have notice of the covenant. Usual remedy is an injunction
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Remedy
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if promisee seeks an injunction, or enforcement of a consensual lien securing a promise to pay money, the promisee must goo into equity and ask for enforcement of an equitable servitude
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Creation
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a real covenant must be in writing, in many states an equitable servitude may be implied. however, writing is usually required.
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Privity of estate
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Horizontal not required for equitable servitudes.Vertical not required for the burden to run. The court is enforcing an interest in land analogous to an easement against anyone who interferes w it. However, when a person other than the original promisee id enforcing the benefit, in some states he must show that he acquired title to his land from the promisee, either before or after the original covenant was made.
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Touch and concern and notice
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require the covenant touch and concern the land. not enforceable against a subsequent bona fide purchaser without notice of the covenant
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Negative equitable servitudes
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may be implied from a general plan for development of a residential subdivision. the court will imply a reciprocal native servitude only if the evidence shows that the developer had a reasonably uniform general plan for development of all lots of the same character. the general plan must exist at the time the developer sells the first burdened lot within the general plan. If a plan arises later, it cannot impose burdens on lots previously sold without burdens.
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Implied servitude
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A servitude similar to a reciprocal negative easement is implied. The servitude must be reciprocal; i.e., a similar
covenant must bind other lots in the subdivision. It must be a negative or restrictive covenant, forbidding some use of land; the court will not imply affirmative covenants, requiring the purchasers to do something. And the servitude is in the nature of an easement; i.e., it is an interest in land. |
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Enforcement by or against assignees
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the contracting parties must intend that the servitude be enforceable by ad against assignees. Privity of estate is only relevant when the person trying to enforce the benefit does not own land that was once owned by the original promisee. Touch and concern requirement.
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Third party beneficiary theory
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In a majority of states, any third-party can enforce a covenant in law or in equity if the contracting parties so intend
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Covenant not to compete
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restricts the promisor in the physical use he may make of his land.
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performance off land
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if the act if to be performed off the burdened land, without benefitting the burdened land, the covenant does not touch and concern the land
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American law- equitable servitudes
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easements in gross are recognized and the burden of the easement runs with the land.
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Exclusion of churches
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Churches and religious schools can be excluded from residential areas by restrictive covenants The majority of courts hold that it is not state action for a court to enjoin religious use of residentially restricted land.
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Racial restriction
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A covenant prohibiting use of the property by a person of a particular race cannot be enforced by the courts. Judicial enforcement of racial covenants is state action which deprives a person of equal protection of the laws. Although the covenant is not void, it cannot be enforced- Shelley v. Kraemer.
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Abandonment
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an affirmative covenant, such as an obligation to pay money, cannot be abandoned. One cannot walk away and terminate liability.
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