Servitudes
A right or an obligation that “runs with the land”, i.e., binds subsequent owners or possessors of the land.
Affirmative servitudes:
the right to use another’s land for a limited purpose: EASEMENTS
Negative servitudes:
restrictions on what owners can do with their own land: COVENANTS
Easements:
A non-possessory right to use another’s land; an interest in another’s land to use it for a limited purpose. (Designated to a specific person or the land itself)
-vs. a lease (a possessory right to use a defined space for a specified time period)
-vs. a license (a limited right to enter or use the land of another)
Issues for Easement
A. Creation
B. Succession
C. Interpretation
D. Restrictions/Definitions (Scope)
1. Obligations
2. Limitations
3. Duration
4. Location/Relocation
E. Termination
Express Easements:
As an interest in land, the Statute of Frauds requires easements to be in writing to be enforceable
Statue of frauds requirements for an Express easement to be valid (elements)
- A writing
- Sufficiently identifying the grantee and grantor
- Signed by the grantor and grantee
- Sufficiently describing the easement, i.e., describing the affected land
5.Containing words of intent to create an easement and not a lease or not to transfer title to a fee interest!
[Including a statement of use]
Elements for Easements to Run Burden (serviant Estate) WIN
1.The original easement is in writing.
2. The holder of the servient estate had notice of the easement at the time of purchase. Notice can be actual, inquiry, or constructive.
3.The original parties to the easement intended for the easement to run with the estate.
- Writing
- Notice (Three types)
- Intent
Writing
The original easement is in writing.
Notice
The holder of the servient estate must have notice of the easement at the time of purchase. On the benefited side there is no requirement of notice. Notice can be actual, inquiry, or constructive. If they didnt have proper notice the easement is void.
Actual notice
you have actual knowledge; someone says something to you or you read it.)
Inquiry notice
visible signs or something factually puts you on notice that there is an easement. i.e telephone post, path in the middle of the land you are about to purchase, utilities/cable readers on your land)
Constructive notice
(if that easement deed was properly recorded, you are on constructive notice of that easement. If does not require you to go down and read the deed, just the fact that it was properly recorded meets the constructive.)
Express easement to run with the estate (Intent):
The original parties to the easement intended for the easement to run with the estate
Express easements can be created by grant or by reservation:
By grant: An easement can be created by deed that conveys the easement by itself.
By reservation: An easement can be created at the same time a parcel of property is sold. An owner of land conveys land, then “reserves” an easement in the land just conveyed.
An express easement will run with the benefitted (dominant) estate if: WI
The original easement is in writing.
*The original parties to the easement intended for the subsequent owners of the dominant estate to benefit.
Easement in gross
Easement appurtenant
- Does the burden run with the servient estate?
- Does the benefit run with the dominant estate?
*If the benefit runs with a particular parcel of land, the easement is appurtenant to land. Whoever owns the land has the right to use the easement.
*If the benefit attaches to a person or entity, the easement is in gross
easement appurtenant
If the benefit runs with a particular parcel of land, the easement is appurtenant to the land. A dominate estate and a serviant estate are in existence. Whoever owns the estate, has the right to use the easement.
easement is in gross
is when the benefit attaches to a person or entity. Only a serviant estate exist.
Creation and Validity of Express Easements
Strict adherence to the Statute of Frauds is the practitioner’s primary defense against future title disputes. Because an easement constitutes a legitimate interest in land, the original instrument serves as the “ground truth” for all subsequent enforcement actions. To ensure a valid express easement, five essential elements must be present:
“Greater Burden” rule
the servient owner (e.g., Clara or the Lupos) may impose Reasonable Restraints to prevent the dominant owner’s use from exceeding the original contemplation of the grantor. those restraints must not Unreasonably Interfere with the dominant owner’s core right of ingress and egress
Resolving Ambiguities: Appurtenant vs. In Gross (“Presumption of Appurtenance)
Courts maintain a strong judicial preference for land-based interests (Appurtenant) over personal interests (In Gross) to ensure the predictable utility of neighboring tracts. This “Presumption of Appurtenance” is applied whenever an easement is ambiguous but involves two parcels of land.
Servient vs. Dominant Parcels
The servient parcel (or burdened estate) is the land that contains the easement and must allow the other party to enter. The dominant parcel (or benefited estate) is the land that holds the right to use the easement across the servient parcel.
Elements for Burden to Run:
For the burden of an easement to bind a successor of the servient estate, the original agreement must have been in writing, the successor must have had notice of the easement at the time of purchase, and the original parties must have intended for the easement to run with the land
