Servitudes

Question 1

What is an easement?

Answer 1

Right to a non-possessory property interest in land that entitles the owner to use or enjoyment of the land for a specific purpose.

Question 2

What is a dominant estate?

Answer 2

Land/property that benefits from the easement.

Question 3

What is a servient estate?

Answer 3

Land burdened by the easement.

Question 4

What is an affirmative easement?

Answer 4

Gives holder the right to affirmatively use the servient estate (i.e. to do something on the servient estate)

Question 5

What is a negative easement?

Answer 5

Forbids the servient estate from doing something it would otherwise be allowed to do on the land.

Question 6

How are negative easements created?

Answer 6

Must be signed and in writing.

Question 7

What is an easement appurtenant?

Answer 7

Benefits one parcel of land (dominant estate) while burdening another (servient estate).

⭐️ Attaches to the land and not a person

Question 8

What is an easement in gross?

Answer 8

Gives a person or entity a right to use a servient estate that is personal to the holder.

Ex. Billboard or power lines on servient estate

Question 9

What are 4 ways in which an affirmative easement can be created?

Answer 9

1. Prescription
2. Implication
3. Necessity
4. Grant (signed in writing)

💡Remember “P-I-N-G”

Question 10

What are two ways to create an express easement?

Answer 10

1. By Grant: express grant of easement, signed and in writing by servient estate to satisfy SOF (if easement could exist for longer than one year)
2. By Reservation: grantor conveys title, but reserves right to easement

Question 11

How do you create an easement by prescription?

Answer 11

Similar to acquiring land by adverse possession. Use of easement must be:

1. Continuous
2. Open
3. Hostile
4. Actual

Negative easements cannot be established through prescription.

Question 12

Summarize the holding of:

Holbrook v. Taylor

Answer 12

(1976 Ky.) An easement by estoppel may arise when a landowner allows another to use their land and that party reasonably relies on the permission by making substantial improvements.

In Holbrook v. Taylor, Taylor used an existing haul road across Holbrook’s land to access and build on his adjacent property. Tthe court found there was no prescriptive easement, since the use was with implied permission.

However, it recognized an easement by estoppel, as Taylor had reasonably relied on continued access and made significant improvements. The court held it would be inequitable to deny him continued use of the road.

Question 13

How is an easement by implication created?

Answer 13

1. Land was initially undivided: Easement exists on a single tract of land that was subsequently severed into the servient and dominant estate;
2. Apparent, existing, and continuing use of one parcel at the time of severance
3. Easement is reasonably necessary for enjoyment of dominant estate at the time of severance.

Question 14

Summarize the holding of:

Van Sandt v. Royster

Answer 14

(Kan. 1938) An easement may be implied by prior use if the use was apparent and necessary for the reasonable enjoyment of the dominant estate, even if not visible.

In Van Sandt v. Royster, Van Sandt bought a property previously owned by Bailey, who had installed an underground sewer line serving two neighboring lots. Although the sewer line wasn’t mentioned in any deeds, it continued to benefit the neighboring properties. Van Sandt sued to block its use.

The court held that an easement was implied by prior use, noting that the use was apparent through circumstances and necessary for the enjoyment of the upstream lots, even though the sewer was not visibly obvious.

This is an example of an easement by implication.

Question 15

How do you create an easement by implied necessity?

Answer 15

An easement by implied necessity is created where:

1. Dominant and servient estates were once a single parcel under common ownership; and
2. Severance of the parcel made the easement absolutely necessary

Question 16

Summarize the holding of:

Othen v. Rosier

Answer 16

(Tex. 1950) No easement by necessity or prescription exists where necessity was not present at the time of conveyance and use was merely permissive.

In Othen v. Rosier, Othen’s land was landlocked, and he accessed it using a road across Rosier’s property, which Rosier had maintained. When Rosier made the road impassable, Othen sued, claiming easements by necessity and prescription.

The court denied both claims, holding that an easement by necessity requires strict necessity at the time of the original conveyance, which Othen did not establish.

The court also found the use of the road was permissive, not adverse, defeating the claim for a prescriptive easement.

Question 17

What is an easement by estoppel (also called an “irrevocable license”)?

Answer 17

If a licensor grants a license on which the licensee reasonable relies to make substantial improvements to property, the owner will be deemed to have created an easement by estoppel; thus, will not be able to deny the improver access to the land.

Question 18

How is an easement by estoppel created?

Answer 18

1. License granted (typically for access purposes; can be express or implied);
2. Reasonable reliance by a party that uses the access to improve the land;
3. The grantor’s knowledge or a reasonable expectation that the improver would use the license

Question 19

When can the owner of an easement seek contribution for repairs?

Answer 19

Only after providing adequate notice and an opportunity for co-owners to participate in repair decisions

Question 20

What are six ways to terminate an easement?

Answer 20

1. Abandonment: Must be evidence of a clear and unequivocal intention to abandon the easement; mere non-use is not enough;
2. Misuse: Some courts hold that misuse by the easement holder extinguishes the easement (rarely used);
3. Duration: The easement is expressly time bound;
4. Release: The holder agrees to release rights to the servient owner (must be in writing);
5. Merger: The holder acquires the rights to both the dominant and servient lands.
6. Estoppel: Servient owner reasonably relies upon a statement or representation by the easement owner

Question 21

What is a license?

Answer 21

A freely revocable, non-possessory right to use the land.

Question 22

Differentiate between a license and an easement.

Answer 22

Licenses:

1. Freely revocable (unless detrimental reliance or coupled with interest)
2. Privilege, not an interest in land
3. Can be created without consideration or writing (no statute of frauds requirement)

Easements:

1. Last for specific period or indefinitely
2. Interest in land
3. Must satisfy the statute of frauds

Question 23

What is a covenant?

Answer 23

A servitudes that either restricts landowners from doing certain things on property or impose obligations on them to do certain things.

Question 24

What is a real covenant?

Answer 24

A covenant concerning real property that “runs with the land” (i.e. bind successors)

Question 25

What is required for the **burden** of a covenant to run with the land?

Answer 25

1. **Writing**: original agreement in writing; 2. **Intent**: parties intended to bind successors (courts are liberal in finding requisite intent); 3. **Touches and concerns** the land; 4. **Horizontal and vertical privity**; and 5. **Notice**: successor had notice of the covenant when she took

Question 26

What is required for the **benefit** of a covenant to run with the land?

Answer 26

1. **Writing**: original agreement in writing; 2. **Intent**: parties intended benefit to run; 3. **Touches and concerns the land**; and 4. Successor is in **vertical privity** with original parties ## Footnote ⚠️ Horizontal privity is **not required**

Question 27

What does it mean for a covenant to "**touch and concern**" the land?

Answer 27

Covenant concerns land, and benefits or burdens land ## Footnote It is a very low bar to show that a covenant "touches and concerns" land.

Question 28

# Define: horizontal privity

Answer 28

Relationship between **original covenant parties**. ## Footnote Examples: * Grantor-grantee * Mortgagor-mortgagee * Landlord-tenant ⚠️ Note: Difficult to establish

Question 29

# Define vertical privity

Answer 29

Relationship between **original party and successor** (contract, descent, devise).

Question 30

What is the **remedy** for a breach of a covenant?

Answer 30

Monetary damages

Question 31

How do you **terminate** a covenant?

Answer 31

1. Release (in writing); 2. Merger; or 3. Condemnation

Question 32

# Define: Equitable servitudes

Answer 32

Covenants enforced by **equity**. ## Footnote (e.g. injunctions)

Question 33

What are the **elements** for an equitable servitude?

Answer 33

1. **Writing**: original agreement in writing (some exceptions where an equitable servitude can be implied by a "common plan," typically in subdivisions); 2. **Intent**: original parties must intend to bind successors; 3. **Touches and concerns** the land; 4. **Notice**: burdened party had actual, record, or inquiry notice (not required for benefit to run)

Question 34

What is evidence of a **common scheme**?

Answer 34

* Recording a map detailing the scheme; * Putting restrictions in lot deeds; or * Letting purchasers know about the plan orally

Question 35

For the purposes enforcing a **reciprocal negative servitude**, what is: 1. Actual notice? 2. Inquiry notice? 3. Record notice?

Answer 35

1. Actual: Literal knowledge of restriction 2. Inquiry: Reasonable neighborhood inspection would indicate common restrictions (ie all houses are single family home) 3. Record: Restriction is in owner's chain of title

Question 36

What are **defenses to enforcement** of equitable servitudes?

Answer 36

1. Pervasive changes that fundamentally alter the neighborhood; 2. Laches; 3. Estoppel; 4. Acquiescence (when party didn't enforce the servitude on other parties, so their right to enforce may be waived) 5. Unclean hands (party seeking enforcement is violating restriction on their own land)

Question 37

What is the remedy for the **breach** of an equitable servitude?

Answer 37

Injunction