Real Property - Licenses, Profits, Covenants, Servitudes

Front 1

License

Back 1

A mere privilege to enter another’s land for some delineated purpose.
- Not subject to the SoF, so do not need a writing to create.
- Freely revocable at the will of the licensor, unless estoppel applies to bar revocation (when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation).

Front 2

License
- Examples

Back 2

Classic cases: tickets (freely revocable __'s), neighbors talking by a fence (oral easement = freely revocable __ & invalid easement b/c violates SoF)

Front 3

Profit

Back 3

Entitles its holder to enter the servient land and take from it the soil or some substance of the soil, such as minerals, timber, and oil.
Shares all the rules of easements.

Front 4

Covenant

Back 4

A promise to do or not do something related to land (on one’s own property, not someone else’s property).
- Unlike the easement because it is not the grant of a property interest, but rather a contractual limitation or promise regarding land (starts out as a mere contract between parties).

Front 5

Affirmative & Negative Covenants

Back 5

- Affirmative: promise to do something related to the land.

- Negative: promise to refrain from doing something related to the land.

Front 6

Covenant Runs with the Land

Back 6

- Capable of binding successors. Burden and benefit must both run with the land for the covenant to run.
- Covenants re: duration of lease run w/ land

Front 7

Covenant Runs with the Land
- Elements for BURDEN to Run

Back 7

- Elements Necessary for Burden to Run:
WRITING, INTENT, TOUCH & CONCERN THE LAND (promise must make land more valuable to benefited party or affect parties' legal relations as landowners and not simply as members of community),
HORIZONTAL PRIVITY (nexus between originally promising parties as grantee/-tor, LL/T, mortgagee/-gor), and
VERTICAL PRIVITY (nexus between new purchaser/lessee and original party- absent only when there is adverse possession).

Front 8

Covenant Runs with the Land
- Elements for BENEFIT to Run

Back 8

- Elements Necessary for Benefit to Run:
WRITING
INTENT
TOUCH & CONCERN
VERTICAL PRIVITY (no horizontal privity necessary)

Front 9

Equitable Servitude

Back 9

Promise that equity will enforce against successors, accompanied by injunctive relief.

Front 10

Equitable Servitude
- Elements necessary to bind successors (for benefit & burden to run)

Back 10

1. WRITING – generally, but not always, the original promise was in writing.
2. INTENT – the parties intended that the promise would bind successors.
3. TOUCH & CONCERN – the promise effects the parties as land owners.
4. NOTICE – the successors of the burdened land had notice of the promise (#4 only required for BURDEN to run)
***privity is not required to bind successors.

Front 11

(1) If P seeks money damages, construe the promise as a ___.

(2) If P seeks an injunction, construe the promise as a ___.

Back 11

(1) Covenant

(2) Equitable servitude

Front 12

Implied Equitable Servitude / Reciprocal Negative Servitude

(typically used when a covenant is not included in a deed)

Back 12

Court may enjoin D from doing something on her land-- will hold unrestricted lot holder to a restrictive covenant if:
(1) there was a common scheme for development/ general pattern of prior restrictions, which included D's lot and
(2) Lot-holder had NOTICE of the covenant/promise contained in prior deeds.

Front 13

Equitable Defenses to Enforcement of Equitable Servitudes

Back 13

- Changed Conditions
(must be so pervasive/fundamental that the ENTIRE AREA has changed- mere pockets of limited change are never good enough)
- Lack of Notice
(even if not on deed, seller should've checked chain of title to determine whether any encumbrances/ conditions attached to the property)

Front 14

Three Forms of NOTICE:
(1) Actual
(2) Inquiry
(3) Record

Back 14

(1) D had literal knowledge of the promises in the prior deeds.
(2) The neighborhood conforms to the common restriction (uniform character).
(3) Sometimes imputed to buyers on the basis of the publicly recorded documents.
- Majority view is that the subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor.