Real Property - Servitudes

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Easements

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The grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another's land (the servient tenement).

Common examples: right to lay utility lines or access to cross a tract of land.

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Negative easements (LASS)

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Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Generally only recognized in 4 categories:
(1) Light
(2) Air
(3) Support
(4) Stream water from an artificial flow

(In a minority of states there's a fifth: scenic view)

Negative easements can _only_ be created EXPRESSLY, by writing signed by the grantor

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Easements appurtenant and in gross

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An easement is appurtenant when it benefits its holder in her physical use or enjoyment of her property. If there are TWO tracts of lands involved, you have an easement appurtenant. The benefitted (non-servient) tenement is called the dominant tenement.

An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is NOT related to her use or enjoyment of her land. Only one parcel of land involved! Examples: right to place a billboard, right to fish/swim, right to lay power lines.

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Transferability and easements

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An easement appurtenant passes _automatically_ with the dominant tenement, regardless of whether it is even mentioned in the conveyance. It passes automatically with the servient estate too UNLESS the new owner is a bona fide purchaser without notice of the easement.

An easement in gross is not transferrable unless it is for commercial purposes.

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Creating an affirmative easement: 4 ways (PING)

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(1) Prescription: an easement may be acquired by satisfying the elements of adverse possession, COAH (continuous, open/notorious, actual, hostile).

(2) Implication (aka easement implied from existing use): if previous use was apparent and the parties expected the use would continue because it is reasonably necessary to the dominant land's use and enjoyment, then a court will imply an easement.

(3) Necessity: landlocked setting. An easement of right of way will be implied by necessity if grantor conveys a portion of her land with no way out except over part of grantor's remaining land.

(4) Grant: an easement to endure for more than one year must be in a writing that complies with the formal elements of a deed because of the statute of frauds. This writing is called a deed of easement.

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Scope of an easement

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Determined by the terms or conditions that created it.

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Termination of an easement (END CRAMP)

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Estoppel: if the servient owner materially changes her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced.

2. Necessity: easements created by necessity expire as soon as the need ends; however, if the easement, attributable to necessity, was nonetheless created by express grant, it won't end when the need ends!

3. Destruction of the servient land, other than through the willful conduct of the servient owner.

4. Condemnation of the servient estate by eminent domain.

5. Release: a written release, given by the easement holder to the servient owner.

6. Abandonment: easement holder must demonstrate by _physical action_ the intent to never use the easement again--think putting up a wall that prevents holder from ever using the easement again. Mere nonuse or words are NOT sufficient to constitute abandonment.

7. Merger doctrine (aka unity of ownership): easement is extinguished when title to the easement and title to the servient land become vested in the same person. Easement is not revived even if the two parcels are split up again later.

8. Prescription: the servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (remember COAH).

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License (5 things to know)

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1. A mere privilege to enter another's land for some delineated purpose.

2. Not subject to statute of frauds, so no writing required.

3. Freely revocable at the will of the licensor (unless estoppel applies).

4. Attempt to create an oral easement results in a license.

5. Estoppel applies to bar revocation of a license only when the licensee has invested substantial money or labor or both in reasonable reliance on the license's continuation.
In VA, an irrevocable license is called an equitable easement.

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Profit

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Entitles its holder to enter the servient land and take from it the soil or some substance of the soil (minerals, timber, oil, etc.). Shares all the rules of easements (except that if it's overused a profit is automatically terminated, whereas an easement remains and the servient land-owner can just sue for damages/injunction).

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Covenants

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A promise to do or not do something related to land. UNLIKE an easement in that it does not grant a property interest, but rather a contractual limitation or promise regarding land.

Negative covenants (known as restrictive covenants) are the most common: a promise to refrain from doing something related to land. Examples: not use land for commercial purposes, or not paint shutters brown, no basketball hoops, etc.).

Affirmative covenants are promises to do something related to land, e.g., promise to paint a common fence.

Terminology: one tract is burdened and another is benefited.

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***Difference between a promise as a covenant or as an equitable servitude***

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Entirely on the basis of the remedy sought. If P seeks money damages, construe it as a covenant; if P seeks an injunction, construe it as an equitable servitude.

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When will a covenant run with the land (and thus bind successors)?

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Only if both the burden and the benefit run with the land. Do the burden analysis first because it's harder for a burden to run with the land than a benefit.

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When a burden runs with the land (WITHN)

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Requirements for the burden of a covenant to run with the land:
1. Writing: original promise between A and B had to be in writing.
2. Intent: original parties had to intend the covenant to run with the land (courts are generous in finding this element).
3. Touch and concern the land: promise must affect the parties' legal relations as landowners and not simply as members of the community at large. NB: Covenants to pay money to be used in connection with the land (e.g., homeowners' association fees) as well as covenants not to compete DO touch and concern the land.
VA exception: covenants not to compete DO NOT run with the land--very unusual.
4. Horizontal AND vertical privity.
a. Horizontal privity refers to a nexus between A and B, the original parties, requiring that they be in succession of estate meaning they were in a grantor/grantee or landlord/tenant or mortgagor/mortgagee relationship. This is HARD to establish, its absence is likely to be a sticking point.
b. Vertical privity refers to the nexus between A and A1 (later owner of burdened tract). It simply requires a non-hostile nexus such as contract, devise, or descent--basically anything except for A1 acquiring her interest via adverse possession. (This is much easier to establish than horizontal privity.)
5. Notice: A1 had notice of the promise when she took.

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When does a benefit run with the land (aka does B have standing to bring a claim)? (WITV)

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1. Writing: original promise between A and B must have been in writing.

2. Intent: original parties must have intended benefit to run with the land.

3. Touch and concern: promise affects parties as landowners.

4. Vertical privity: non-hostile nexus between B and B1.

NB: Horizontal privity is NOT required for the benefit to run.

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Equitable servitudes

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A promise that equity will enforce against successors. It looks a lot like a covenant but is distinguishable because it is accompanied by injunctive relief.

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Requirement for equitable servitudes to run with the land (WITN-ES)

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1. Writing: generally, but not always, original promise was in writing.

2. Intent: parties intended the promise would bind successors.

3. Touch and concern the land: promise affects parties AS landowners.

4. Notice: successors of _burdened_ land had notice of the equitable servitude.

ES = equitable servitude.

NB: privity is not required to bind successors--equity is more malleable than covenants.

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Implied equitable servitude (aka reciprocal negative servitude) (2 elements)

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General or common scheme doctrine. Applies when there are a bunch of lots sold by one developer and results in a reciprocal negative servitude.

(i) When the sales of the lots began, the subdivider had a general scheme of residential development which included the lot in question now; and
(ii) The defendant lotholder had notice of the promise contained in prior deeds.

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Three forms of notice potentially imputed to defendants in an implied equitable servitude situation (AIR)

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1. Actual notice, meaning D had literal knowledge of the promises in prior deeds.

2. Inquiry notice, meaning the neighborhood conforms to the common restriction (aka lay of the land). NB: VA does not allow for inquiry notice--must be one of the other two.

3. Record notice, meaning notice is imputed based on public records.

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Equitable defenses to enforcement of an (implied?) equitable servitude

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(Just one?)

Changed conditions: The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed.

Never good enough: mere pockets of limited change.