Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
28 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Rights in the Land of Another: Easements, Profits, Covenants, AND Servitudes
General Rule Block |
Easements, profits, covenants and servitudes are nonpossessory interests in land. They create a right to use land possessed by someone else.
Easements, profits, covenants, and servitudes have many similarities in operation, coverage, creation, and termination. They also have important differences, mainly in the requirements that must be met for their enforcement. |
For example, A, the owner of Blackacre, grants to B, the owner of an adjacent parcel, Whitecacre, the right to use a path over Blackacre connecting Whiteacre to a public road. An easement has been created, giving B the right to use--but not to possess--the pathway over Blackacre.
|
|
|
"Easements"
General Rule: |
(Intro)
The holder of an easement has the right to use a tract of land (called the servient tenement) for a special purpose, BUT has no right to possess and enjoy the tract of land. The owner of the servient tenement continues to have the right to full possession and enjoyment subject ONLY to the limitation that he CANNOT interfere w/ the right of special use created in the easement holder. Typically, easements are created in order to give their holder the right of access across a tract of land, e.g., the privilege of laying utility lines, or installing sewer pipes and the like. Easements are either affirmative or negative, appurtenant, or in gross. |
|
|
|
"Easement" Definition:
|
An easement is a privilege to use the land of another.
|
|
|
|
"Affirmative" Easement:
General Rule Block: |
Affirmative Easements entitle the holder to enter upon the servient tenement AND make an affirmative use of it for such purposes as laying and maintaining utility lines, draining waters, and polluting the air over the servient estate.
the "right-of-way" easement is another instance of an affirmative easement. thus, an affirmative easement privileges the holder of the benefit to make a use of the servient estate that, absent the easement, would be an unlawful trespass or nuisance. |
|
|
|
"Affirmative" Easement:
Definition/Example: |
An Affirmative easement is one entitling its holder to do a physical act on another's land.
|
Example: A, who owns Blackacre, so that B can pass from his own property to a street which adjoins Blackacre. B holds and affirmative easement.
|
|
|
"Negative" Easement:
General Rule Block: |
A "Negative" easement does NOT grant to its owner the right to enter upon the servient tenement. It DOES, however, entitle the privilege holder to compel the possessor of the servient tenement to refrain from engaging in activity upon the servient tenement that, wer it not for the existence of the easement, he would be privileged to do.
In reality, a negative easement is simply a restrictive covenant. **Courts hesitate to recognize new forms of negative easements AND generally have confined them to a traditional handful: easements for light, air, subjacent or lateral support, AND for the flow of an artificial stream. |
Example: A owns Lot 6. By written instrument, he stipulates to B that he will not build any structure upon Lot 6 within 35 ft of the lot line. B has acquired a negative easement in Lot 6.
|
|
|
"Negative" Easement:
Definition/Example: |
A Negative easement is onw which enables its holder to prevent the owner of land from making certain uses of that land. (rare)
- A negative easement is also negative in that:it does NOT permit the dominant tenant to engage in any affirmative act on the servient tenement--who bears the burden of of a negative easement. |
Example: A owns Whiteacre, which is next to the ocean; B owns Blackacre, which is separated from the ocean by Whiteacre. A gives B an easement of "light and air," which assures B that A will not build anything on Whiteacre which would block B's view of the ocean. B holds a negative easement.
|
|
|
Appurtenant v. in gross:
Distinguish between easements that are appurtenant to a particular piece of land, and those that are "in gross." |
Appurtenant: An easement is appurtenant when it is attached to a piece of land and benefits the owner of such land in his use and enjoyment thereof. Every easement appurtenant requires two pieces of land which are owned by two different persons.
In other words: An easement appurtenant is one which BENEFITS its holder in the use of a certain piece of land. The land for whose benefit the appurtenant easement is created is called the "dominant tenement." The land that is burdened or used is called the "servient tenement." Easements appurtenant run with the land; in other words; where the land is transferred, the easement appurtenant WILL transfer to the new owner of the land. |
Example: Blackacre, owned by S, stands between Whiteacre, owned by D and the public road. S gives D the right to pass over a defined part of Blackacre to get from Whiteacre to the road. This right of way is an easement that is appurtenant to Whiteacre -- Blackacre is the servient tenement, and Whiteacre is the dominant tenement.
**Test For: for an easement to be appurtenant, its benefit MUST be intimately tied to a particular piece of land (the dominant tenement) |
|
|
Easement in Gross:
|
An easement "in gross" is one whose benefit is NOT tied to any particular parcel.
An easement is in gross when it is intended to benefit the owner OR possessor PERSONALLY rather than in connection with any land the holder owns. In other words, every easement in gross requires ONLY one piece of land (i.e., the servient tenement), which is owned by a person other than the owner of the easement in gross. There is NO dominant tenement. The servient tenement is the land subject to and burdened by the easement. |
Example:
O, who owns Blackacre, gives E, who lives across town, the right to come onto Blackacre anytime he wants, and use O's swimming pool. since the grant is NOT given because of E's ownership of nearby land, the easement is in gross. Exam Response: The ____Right would be construed as an easement in gross. Yhis nonpossessory interest is created when the holder of the easement interes acquires his right of special use in the servient tenement independennt of his pwnership or possion of another tract of land. In an easement in gross, the easement holder is NOT benefited in his use and enjoyment of a possessory estate (i.e.m there is NO Dominant tenement) by virtue of the acquisition of that privilege. |
|
|
Define "Profit"
("profit a prendre") |
Related to easements is "profit a prendre."
A "profit" is the right of one person to go onto the land in possession of another and take therefrom either some part of the land itself OR some product of the land. For example, A has the right to enter Blackacre, which is in the possession of B, and take off oil, gravel, marble, stone, grass, trees, shrubbery, OR fish. |
A Profit is a Right to go onto the land of another AND remove the soil or a product of it. thus, the Right to mine Minerals, drill, Oil,, or capture wild Game, or Fish, are ALL profits.
(In the U.S., profits are functionally identical to easements.) |
|
|
Equitable Servitudes
Definition: |
An equitable servitude is a restriction on the use of land enforceable in a court of equity. An equitable servitude is more than a covenant running with the land BECAUSE it is "an interest in land." It is Important to note that an equitable servitude is broader than "equitable easement" BECAUSE it applies NOT ONLY to land BUT ALSO to chattel property, such as a business.
|
|
|
|
What are the (4) Requirements of Equitable Servitudes?
|
1) Writing
2) Intention 3) Notice 4) - (No Privity required) |
Rules:
1)Writing. An equitable servitude MAY be created by any writing complying with the SOF evincing an intention that such servitude exist. 2) Intention. The intention of the parties determines who MAY and who may NOT enforce an equitable servitude. NO particular words are essential to create an equitable servitude, procided that an intention to bind the land, AND NOT merely the persons to the transation CAN be found from the instrument and the circumstances surrounding its execution. 3) Notice. The transferee MUST take the land with either ACTUAL or CONSTRUCTIVE Notice of the existence of the servitude. On the other hand, an equitable servitude CANNOT BE ENFORCED AGAINST a person who gives value AND has no notice of the existence of the servitude (namely, a bona fide purchaser). 4) UNLIKE in a COVENANT, privity is NOT an equitable servitude BECAUSE the servitude is considered to be an equitable property interest in the land AND NOT a right of the owner of the servient tenement. |
|
|
Enforceability of an Equitable Servitude?
General Rule: |
An equitable servitude MAY be enforced against one of a parties (OR a trnnsferee with notice), as to land acquired after the creation of the original relationship between the parties.
Caveat: A court of equity MAY refuse to enforce AN EQUITABLE SERVITUDE IN THE FOLLOWING SITUATIONS: - If its purpose is contrary to public policy - When the granting of relief would do more harm than good - When the granting of the relief prayed for would be futile; OR - The Plaintiff is guilty of laches OR unclean hands (i.e., the person seeking enforcement is guilty of a similar violation). |
-
|
|
|
Remedies for a Violation of Equitable Servitude:
|
The remedy for violation of an E/S WILL generally be
-Specific performance OR -Injunction. (equity) |
|
|
|
Exam Tips on Equitable Servitudes:
- Tips -Exam Hot/Issue Checklist: |
On exams, MOST covenants MUST be analyzed as E/S's. That is, in the typical exam setting the promise is a negative one -- "I won't use the land in a particular way" -- and the plaintiff seeks an injunctions, NOT Damages for monetary loss.
|
General Rules:
(Crunchtime 141) - Burden MUST touch & concern the land - Who MAY enforce? - Subdivision Plan - Zoning Laws - Termination due to Changes in the neighborhood - (Implied reciprocal servitude) |
|
|
Exam Tips on Covenants:
- Tips -Exam Hot/Issue Checklist: |
Covenants generally: Make sure ALL requirements are present for the running of the benefit & burden:
|
Intent to Run: Check to make sure that the parties intended that the benefit OR burden (whichever is in issue on your facts) run with the land.
- "Assigns" as clue: if present, will virtually guarantee an intent to have the benefit (or burden) run. - Surrounding circumstances (MAY sufficiantly establish intent) Privity: - Horizontal (NOT two strangers to a title) MUST be LL/T OR conveyance. Touches & Concerns land: - Test:On the burden side--sure fire clue is a burden affecting the value of the land - HOA Fees to maintain Common Areas: **WATCH OUT** Commonly tested type of Real Covenant. Even though the obligation to pay is real $$, it is considered to touch and concern the promisor's land. -Utility Purchases: Mere agreement to purchase utilities (or other services) IS NOT deemed to T&C promisee's land |
|
|
Exam Tips on Profits:
- Tips -Exam Hot/Issue Checklist: |
Profits Generally: Occasionally, a landowner will give another person a Right to go onto the owner's land AND remove the soil OR a product of it, such as sand, gravel AND stone or minerals. When this happens, call the right a "profit," BUT treat it as if it were an easement (since in the US the rules for profits are the same as for easements).
|
Right to Do What's Necessary to Exploit: The holder of an easement has the right to USE and MODIFY the property in any way reasonably required to exploit the right.
|
|
|
Exam Tips on Licenses:
- Tips -Exam Hot/Issue Checklist: |
License generally: A "License" is merely a personal privilege to enter upon another's land which is revocable AND in NOT an interes in land. If you see a permission that's given orally, assume that it's a LICENSE, AND that is therefore revocable at the licensor's will.
|
|
|
|
Equitable Servitudes
Definition: |
An equitable servitude is a restriction on the use of land enforceable in a court of equity. An equitable servitude is more than a covenant running with the land BECAUSE it is "an interest in land." It is Important to note that an equitable servitude is broader than "equitable easement" BECAUSE it applies NOT ONLY to land BUT ALSO to chattel property, such as a business.
|
|
|
|
What are the (4) Requirements of Equitable Servitudes?
|
1) Writing
2) Intention 3) Notice 4) - (No Privity required) |
Rules:
1)Writing. An equitable servitude MAY be created by any writing complying with the SOF evincing an intention that such servitude exist. 2) Intention. The intention of the parties determines who MAY and who may NOT enforce an equitable servitude. NO particular words are essential to create an equitable servitude, procided that an intention to bind the land, AND NOT merely the persons to the transation CAN be found from the instrument and the circumstances surrounding its execution. 3) Notice. The transferee MUST take the land with either ACTUAL or CONSTRUCTIVE Notice of the existence of the servitude. On the other hand, an equitable servitude CANNOT BE ENFORCED AGAINST a person who gives value AND has no notice of the existence of the servitude (namely, a bona fide purchaser). 4) UNLIKE in a COVENANT, privity is NOT an equitable servitude BECAUSE the servitude is considered to be an equitable property interest in the land AND NOT a right of the owner of the servient tenement. |
|
|
Enforceability of an Equitable Servitude?
General Rule: |
An equitable servitude MAY be enforced against one of a parties (OR a trnnsferee with notice), as to land acquired after the creation of the original relationship between the parties.
Caveat: A court of equity MAY refuse to enforce AN EQUITABLE SERVITUDE IN THE FOLLOWING SITUATIONS: - If its purpose is contrary to public policy - When the granting of relief would do more harm than good - When the granting of the relief prayed for would be futile; OR - The Plaintiff is guilty of laches OR unclean hands (i.e., the person seeking enforcement is guilty of a similar violation). |
-
|
|
|
Equitable Servitudes:
|
Generally: A promise MAY be enforced at EQUITY, by the award of an injunction (ordering the defendant NOT to do something). When a court not only gives equitable relief, BUT applies it against an ASSIGNEE of the original promisor, the promise is referred to as an equitable servitude against the burdened land.
|
|
|
|
What is the Most Important thing to Remember about Equitable Servitudes?
|
Notice to Subsequent Purchaser:
Equity will NOT enforce an agreement against a subsequent purchaser UNLESS he had NOTICE of the restriction. |
Notice:
MAY be either "actual" OR "constructive" |
|
|
Remedies for a Violation of Equitable Servitude:
|
The remedy for violation of an E/S WILL generally be
-Specific performance OR -Injunction. (equity) |
|
|
|
Exam Tips on Equitable Servitudes:
- Tips -Exam Hot/Issue Checklist: |
On exams, MOST covenants MUST be analyzed as E/S's. That is, in the typical exam setting the promise is a negative one -- "I won't use the land in a particular way" -- and the plaintiff seeks an injunctions, NOT Damages for monetary loss.
|
General Rules:
(Crunchtime 141) - Burden MUST touch & concern the land - Who MAY enforce? - Subdivision Plan - Zoning Laws - Termination due to Changes in the neighborhood - (Implied reciprocal servitude) |
|
|
Exam Tips on Covenants:
- Tips -Exam Hot/Issue Checklist: |
Covenants generally: Make sure ALL requirements are present for the running of the benefit & burden:
|
Intent to Run: Check to make sure that the parties intended that the benefit OR burden (whichever is in issue on your facts) run with the land.
- "Assigns" as clue: if present, will virtually guarantee an intent to have the benefit (or burden) run. - Surrounding circumstances (MAY sufficiantly establish intent) Privity: - Horizontal (NOT two strangers to a title) MUST be LL/T OR conveyance. Touches & Concerns land: - Test:On the burden side--sure fire clue is a burden affecting the value of the land - HOA Fees to maintain Common Areas: **WATCH OUT** Commonly tested type of Real Covenant. Even though the obligation to pay is real $$, it is considered to touch and concern the promisor's land. -Utility Purchases: Mere agreement to purchase utilities (or other services) IS NOT deemed to T&C promisee's land |
|
|
Exam Tips on Profits:
- Tips -Exam Hot/Issue Checklist: |
Profits Generally: Occasionally, a landowner will give another person a Right to go onto the owner's land AND remove the soil OR a product of it, such as sand, gravel AND stone or minerals. When this happens, call the right a "profit," BUT treat it as if it were an easement (since in the US the rules for profits are the same as for easements).
|
Right to Do What's Necessary to Exploit: The holder of an easement has the right to USE and MODIFY the property in any way reasonably required to exploit the right.
|
|
|
Exam Tips on Licenses:
- Tips -Exam Hot/Issue Checklist: |
License generally: A "License" is merely a personal privilege to enter upon another's land which is revocable AND in NOT an interes in land. If you see a permission that's given orally, assume that it's a LICENSE, AND that is therefore revocable at the licensor's will.
|
|
