[P2] Property // Servitudes

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FL REAL PROPERTY

[P2] SERVITUDES

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SERVITUDES

[P2] Property // Servitudes

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EASEMENTS:

An EASEMENT is a...

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An EASEMENT is a...
- Non-possessory interest
- To use land possessed by another
- Or -
- To restrict the use of another's land.

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Easements can be Affirmative or Negative:

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Easements can be affirmative or negative.

An affirmative easement allows the holder to enter onto the servient tenement and make an affirmative use of it.

A negative easement prevents the owner of the servient tenement from engaging in specified activity on the servient tenement.

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An easement can be an affirmative or negative easement, and additionally, Easements can be Appurtenant or In-Gross:

Easement Appurtenant

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Easement Appurtenant

An easement appurtenant benefits the easement holder in the use of his land (e.g., an easement to use a driveway across a neighbor's land), and it runs with the holder's land.

For an easement appurtenant, there must be two tracts of land: the dominant tenement (the estate benefited by the easement), and the servient tenement (the easement subject to the easement right).

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An easement can be an affirmative or negative easement, and additionally, Easements can be Appurtenant or In-Gross:

Easement In Gross

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Easement In Gross

Easement In Gross: A holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land (i.e., the easement benefits the holder rather than another parcel).

In FL, easements in gross are NOT transferable. Florida courts have apparently refused to limit the rule that easements in gross aren't transferable.

In FL, Easements in gross are considered PERSONAL to the ORIGINAL holder.

In FL, an easement in gross is for strictly COMMERCIAL purposes.

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Easement by Implication: An easement by implication is created ______________. It is an exception to _______.

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An easement by implication is created by operation of law. It is an exception to the SOF.

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Easement by Implication: Generally, there are 2 types of easement by implication: (i) Easement implied from ________ (i.e., easement by _________); and (ii) easement by ___________.

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Generally, there are 2 types of easement by implication: (i) Easement implied from existing use (i.e., easement by estoppel); and (ii) easement by necessity.

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Easement by Necessity: Florida recognizes the common law rule of ___________________.

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Florida recognizes the common law rule of an implied grant of a way of necessity.

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Easement by Necessity: Such an implied grant or easement exists where _________________________ and the easement is __________________ for the ____________________ of the part granted or reserved.

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Easement by Necessity: Such an implied grant or easement exists where there is no other reasonable way of entrance or exit and the easement is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

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Easement by Necessity: An implied grant arises only where a ______________ exists from a ____________.

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An implied grant arises only where a unity of title exists from a common source.

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Easement by Necessity: Florida also has a ____________ easement of necessity.

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Florida also has a statutory easement of necessity.

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(Statutory) Easement by Necessity: Based on public policy, convenience and necessity, a statutory easement exists under Florida law when any land _______ any _________ that is used for _______ or _______ purposes is shut off or hemmed in by lands, fencing or other improvements so that __________________________ is available.

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Based on public policy, convenience and necessity, a statutory easement exists under Florida law when any land outside any municipality that is used for dwelling or agricultural purposes is shut off or hemmed in by lands, fencing or other improvements so that no reasonable route of entrance or exit is available.

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(Statutory) Easement by Necessity: True or False - The statutory easement of necessity arises regardless of whether a unity of title exists from a common source.

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True. The statutory easement of necessity arises regardless of whether a unity of title exists from a common source.

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Easement by Prescription: An easement can arise through prescription if: (i) the easement holder has ___________, (ii) the _____ was _____ and ______, (iii) the ____ was ______ (i.e., without _________), and (iv) the ____ was ________ for the period of ____ years.

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Easement by Prescription -a.k.a- "Easement by Adverse Possession": An easement can arise through prescription if: (i) the easement holder has used the easement for a sufficient time, (ii) the use was open and notorious, (iii) the use was adverse (i.e., without the owner's permission), and (iv) the use was continuous for 20 years.

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Easement by Prescription: The common law ______ limitation period is applicable to easements.

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Easement by Prescription: The common law ______ limitation period is applicable to easements.

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Easements: What is the presumption about the SCOPE of an EASEMENT? Unless the ________ creating the easement provides otherwise, it's presumed that the easement is intended to __________________ of the ___________ tenement holder.

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SCOPE of an EASEMENT: Unless the deed creating the easement provides otherwise, it is presumed that the easement is intended to meet REASONABLE FUTURE NEEDS of the DOMINATE tenement holder

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What if you attempt to create an easement but fail?

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A failed attempt to create an easement results with a LICENSE.

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Real Covenants: A real covenant, usually found in a deed, is (i) a ___________________ to __________________ on the land OR (ii) a ________________________ on the land.

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Real Covenant:
A real covenant, usually found in a DEED, is (i) a WRITTEN PROMISE to DO SOMETHING on the land OR (ii) a PROMISE to NOT DO SOMETHING on the land [Ex(i): WRITTEN PROMISE to DO SOMETHING on the land = You will maintain a fence / Ex(ii): WRITTEN PROMISE to NOT DO SOMETHING on the land = You will not build a multi-family dwelling].

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Real Covenants: Do Real covenants run with the land?

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Yes.

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Real Covenants: Real covenants run with the land - What does "RUN WITH the LAND"mean?

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Real Covenants: Real covenants run with the land, which means that SUBSEQUENT OWNERS may ENFORCE or be BURDENED by the covenants.

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Equitable Servitudes: An equitable servitude is a covenant that, regardless of whether it runs with the land, _________ will ______________________ of the ___________ land who has __________ of the covenant. The usual remedy is __________.

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Equitable Servitudes: An equitable servitude is a covenant that, regardless of whether it runs with the land, EQUITY will ENFORCE AGAINST THE ASSIGNEE of the BURDENED land who has NOTICE of the covenant. The usual remedy is an INJUNCTION.

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Equitable Servitudes: What is the usual remedy for the enforcement of an equitable servitude?

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The usual remedy is an INJUNCTION.

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Equitable Servitudes: While the most satisfactory manner to create an equitable servitude is by language in a DEED, an equitable servitude may also be created by (i) _____________________ or (ii) a court may apply a __________, a reciprocal __________________, by using the "__________________."

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Equitable Servitudes: While the most satisfactory manner to create an equitable servitude is by language in a DEED, an equitable servitude may also be created by (i) ORAL REPRESENTATIONS or (ii) a court may apply a COVENANT, a reciprocal NEGATIVE SERVITUDE, by using the "GENERAL SCHEME DOCTRINE."

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RealC vs. EqS: The crucial difference between real covenants and equitable servitudes is ___________________.

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The crucial difference between real covenants and equitable servitudes is the REMEDY SOUGHT.

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RealC vs. EqS: Remedy Sought: If MONEY damages are sought, you should use the _______________ analysis.

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If MONEY damages are sought, you should use the REAL COVENANT analysis.

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RealC vs. EqS: Remedy Sought: If a party seeks an _________, consider whether the requirements for an enforcement as an _________________ have been met - the requirements for enforcement against successors in title are:

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If a party seeks an INJUNCTION, consider whether the requirements for an enforcement as an EQUITABLE SERVITUDE have been met.

The requirements for enforcement as an Equitable Servitude against successors in title are:
(1) INTENT by developer to impose a servitude (a restriction on use) on all lots in the subdivision recorded plat / GSD
(2) NOTICE (Actual, Record, Inquiry)
(3) TOUCH & CONCERN land (i.e. makes dominate estate more valuable to benefitted party while restricting the rights of the servient estate owner)

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License:

What is a license? (Generally)

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License: A license is PRVILEGE which allows holders to GO UPON THE LAND OF ANOTHER. But unlike an easement, a LICENSE isn't an interest in land. It's merely a privilege, REVOCABLE at the will of the licensor.

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License: A license is _______ to the holder and, thus, is ___________.

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A license is a PERSONAL to the LICENSEE and, thus, is INALIENABLE (i.e., you cannot transfer a license - any attempt to automatically revokes it).

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License: Can you transfer a license?

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No. Any attempt to transfer a license results in revocation by operation of law.

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What if you attempt to create an easement but fail?

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A failed attempt to create an easement results with a LICENSE