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31 Cards in this Set

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Review: Easements, Covenants and Servitudes
Review: Easements, Covenants and Servitudes
You have an easement if…
There is a grant of an interest, which
Permits a use of another’s real property, and is
Non-revocable for the period described
Easements must be either
Appurtenant: the use benefits the easement holder’s land (dominant estate or tenement), and burdens the easement grantor’s estate (servient estate or tenement); OR
In Gross: grantee receives a personal benefit unrelated to grantee’s land (if any).
Ambiguous grants  appurtenant is presumed.
Know the language, there is a benefitted or a burdened
Gross- you give me a right to cross over onto your land to get to the public land. It is not an easement apurtentant because I don’t have any land that is benefitted by that.
Where a grant is ambiguous the appurtenant is presumed
Easements are also either..
Affirmative (typical): a use on grantor’s land is specified; OR
Negative (rare): a use on grantor’s land is prohibited
Subjacent/lateral support
Flow of artificial streams
99 percent of easement are affirmateive.
Subjactent and lateral support- support from underneath and from the side. Normally natural so if you give me that easement I say I won’t do anything on my land that will destroy your land. I won’t create natural sinkholes or earth on your property to move in a particular way.
Profits are easements..
In gross that permit a right to take resources or crops from grantor’s land.
Even if related in some way to grantee’s land, mainly treated as in gross because right has value apart from grantee’s land.
Always assignable.
Come with access easement.
Licenses are not easements..
But are simply revocable permissions to enter one’s land.
Need not be written.
Ambiguous grants typically construed as a license.
Typically not assignable unless so intended.

If you specifically intend that they can be they are assignable.
Licenses and Easments
License can become irrevocable through equitable estoppel
If licensor grants a license on which licensee reasonably relies, and
Licensee makes substantial improvements such that revoking the license would cause detrimental harm, and
Licensor knew or had reason to know; then
License become irrevocable until reasonable expectations of the party have been satisfied
License then becomes essentially the same as an easement.
Some courts call it an easement
Creation of Easement
By grant: writing (statute of frauds)
Reservations now permitted in favor of grantees (typically without need of fiction of grant-back); BUT
Third-parties are still typically not permitted as beneficiaries of reservations (but see jurisdictions like California, which now allow).
By estoppel (see prior slide); AND…

Third party can’t reserve and easement ( Common Law)
Case we read in class third parties are permitted
By Implication….easements without writings exceptions to SofF
Prior Use (“quasi-easement”)
Same party must own the “dominant” and “servient estates”
Use must be reasonably necessary for use and enjoyment of quasi-dominant estate
Use must have been continuous and intended to continue beyond division of lot- when the grantor severs the parcel the grantor intends this use to continue.
Use must be existing at division- like a pipeline or a roadway and parcels are being served
Use must be “apparent” if not visible.- case we looked at because you could flush tTwo Types of Implication
Exsiting at the division
Contrast with easement by necessity. Necessity deals with access. However, similar owner is necessary.
If you have a driveway that is already in use you are going to us
he toilet it was apparent.
By implication …
Necessity (ONLY for right of way easements)
Common owner
Divides property such that
A resulting parcel lacks access to public roadway.
Sevient estate holders chooses reasonably convenient location for easement.
By Prescription
Acquired by adverse use for statutory period
May be appurtenant or in gross
Under a claim of right (not permissive-license that only become an easement by estopple)
Subjective/objective approaches like in adverse possession. ) objective – my use is different that what they allowed them to use it for
Open and notorious
Exclusive, but only in sense that user’s claim doesn’t depend on a like right in others.( You don’t have to be the only person- other non-owners might be using this strip of land- your use is independent of anybody elses use) The owner might not be excluded.

Tacking is permissible
Public Easements
Public Trust Doctrine
Up to mean high water mark
Trouble with non-tidal bodies of water (e.g. Great Lakes)
Can’t be legislatively eliminated
Access may require some use of private lands/beaches.
Limits to Prescriptive Easements
Can’t be used to establish negative easements; and

Can’t be used to gain easement over government-held lands.
Assignability of Easements
Appurtenant: always assignable.

In Gross:
Commercial easements typically are assignable (profits are always); but
Recreational easements aren’t unless it is clear that parties so intended;
Recreational profits? (Probably, yes.)
Scope of Easements
Depends on intent of parties
How created (prescription  no expansion)
Changed conditions (can’t change benefited land)
Foreseeability of changes
What is necessary to achieve intended purpose
Burden on servient estate (can’t change location)
Easement for access original by horses now cars can be expanded with the changed circumstances. Ask is this a forseeable circumstance? Would the orginal owner reasonably frosee this expansion.
If it is enlarged beyond the servients burden it is going to be a problem…
We can’t require that the benefitted land be changed.
This is where you would discuss and weight factors.. This is not elemental
Merger of appurtenant estates
Release (written) or Abandonment
Cessation of purpose (may be due to alteration of dominant estate)(ran cable over your land)
Actions of others that make eliminate purpose of easement. Example, suppose that the easement to the public road and the state makes a dead end road and makes a new road that is available you no longer have the prior easement.
Prescription by servient estate holder. (Counter Perscription put up a barbwire fence and make it impossible for you to use your land)
Real Covenants
A promise (contract) governed primarily by contract law.
If a promise qualifies as an equitable servitiude it does not qualify as a RC.
That runs with the land
Benefits/burdens subsequent estate holders in the land
That can be affirmative or negative; and
Is enforceable with a personal judgment for damages.
Role of property law is limited…
The formation of the covenant; and
The terms of the covenant are a matter of contract law; but
Whether it is enforceable by or against subsequent holders of an estate in the land is a matter of property law. (The issue of running is what property law is concerned about.
Distinguish from conditions in grants
I convey Blackacre to Alvin so long as the property is not used to sell alcohol” is a grant with a condition (FS Determinable); but
“I promise never to use my property (Blackacre) to facilitate the sale of alcohol to any person” is a covenant. (Equitable Servitudes)
Compare to easements…
Affirmative easements give a right to the grantee to use grantor’s property; but
Covenants are promises by the grantor (or grantee) not to use her own property in a certain way, or to do some affirmative act.
The person that is burdened is dealing with their own land. The person that is benefited is not dealing with their own land.
Negative easements are functionally the same as real covenants. When I say that I won’t block light so your grass can grow. That can be a negative easement. It could also be a covenant. That is the one time we have an overlap.
Creation of Real Covenants
Must always be in writing – no implied or prescriptive real covenants.
For burden to run with land, at common law, will need to be part of some document that conveys an interest in land.
Running of burden at common law
Intent that burden run (language binding “successors” and the like)
Horizontal privity- between the original contracting party some conveyance.
Vertical privity  Identical estate- so if I had fee simple absolute when I had the promise conveyed to me and I made that promise. That burden will only run if I grant a fee simple.
Touch and concern the land
Notice (but only as demanded by applicable recording act) (gifts you don’t have to worry about notice)
Running of benefit at common law
Intent that benefit run (language binding “successors” and the like)
Vertical privity  Any interest in the estate of the benefited parcel
No Horizontal
Touch and concern the land
Touch and Concern
Covenant involves tangible use and enjoyment of land
Covenant’s effect effects burdened or benefited land (consider separately)
Affirmative covenants: examine carefully to determine if burden is merely personal.
Covenants to pay money: t & c if payment enhances value of burdened land

Consider the benefit and the burden seperately. And if they touch and concern. I
Matching up “touch and concern”
If no T & C, then benefit or burden is “in gross.”
Common law: if benefit is in gross, the burden won’t run (even if burden touches and concerns).
But.. If burden is in gross, many courts will still permit benefit to run (but benefit must still touch and concern).

IF I want a benefit to run I need to show it T& C. Yes?
Does the other thing (burden) t and C the land. No not necessarily. Some courts say no!
First Question first question is ask is this a burden? Does the Burden run? It has to touch and conern the land? Does the Benefit have to Tand C the answer is normally yes.
Equitable Servitudes
It’s a covenant, too!
If a covenant qualifies as a real covenant, it must also be an equitable servitude.
If a covenant doesn’t qualify as a real covenant, it may still be an equitable servitude.
Essential distinction: enforcement by equitable remedies (typically: injunction).
Creation of a servitude…
May occur through a writing (e.g., a deed) or, unlike a real covenant, by implication.
Common development scheme that
Creates a negative covenant burdening sold lots, where
Reciprocal negative covenants were apparently relied upon given uniform character of development.
Only negative covenants qualify.
Running of benefit or burden of equitable servitude
Intent that covenant’s benefit or burden run.
No privity required.
Notice  but not just to bona fide purchasers.
Both benefit and burden must touch and concern
Third-party beneficiaries
Prior purchaser (in development)
E.g. Albert buys from developer and promises to use only as single family. No reciprocal promise made. Fred buys 8th lot from same developer, makes same promise as Albert. Albert can enforce Fred’s covenant with developer because Albert can trace title back to same developer.
Some states permit enforcement by any intended 3rd party beneficiary.
Mirror image to implied burdens (above).
Merger: same person acquires title to burdened and benefited land.
Release and waiver (requires all holders of benefit)
Expiration by terms
Change in conditions in immediate area such that purpose can’t be achieved
Change in condition in surrounding area such that no lots are benefited
Abandonment by benefited parties(widespread violations)
Can’t abandon burden!
Restatement of Property (3rd) Servitudes
Does away with distinction between real covenants and equitable servitudes and calls them all “servitudes.” 1.4
No horizontal privity required. 2.4
Benefits in gross and 3rd party beneficiaries allowes. 2.6
Touch & Concern replaced by “Validity” factors. 3.1
No privity for benefits to run. 8.2