Servitudes

Question 1

Servitude Benefits

Answer 1

• (1) secure expectations and identity interests in the land, (2) encourage investment, and (3) encourage alienation of land

Question 2

Problems

Answer 2

• (1) burden land with useless or outdated restrictions, (2) undermine broader policy goals, or (3) unfairly surprise and undermine expectations of new purchasers of the land (as holders of the benefit and burden of the servitude disagree as to how the land should be used)

Question 3

Evaluate servitude law according to how successfully it balances conflicting policy concerns 4 Questions

Answer 3

1. Do formal requirements for creation of servitudes help ensure that the parties creating the servitude truly intend to bind the land and that future owners have notice of the servitude’s existence?
2. Do rules for interpretation of ambiguous servitudes further the presumed intent of the parties, prevent unfair surprise, and ensure that the land serves public interests?
3. Do substantive restrictions on servitudes ensure that they increase land value and do not undermine other important policy goals?
4. Do rules for termination end servitudes that no longer serve party’s intent or that unduly burden the land?

Question 4

Easement

Answer 4

nonpossessory rights to use another’s land that run with the land

Question 5

Appurtenant easement

Answer 5

• When the benefit runs with land as if it were attached to that particular parcel of land
• Cannot be severed from the land - transferable by definition, when the dominant estate is conveyed

Question 6

Easement in gross

Answer 6

1. When the benefit does not run with the land, and is not attached to a particular parcel of land, so there is no dominant estate (benefit of servitude held by a particular individual) (utility lines, owned by utility companies that may own no property in the immediate vicinity of the easement)

• Traditionally, easements in gross were not transferable - Now, generally held to be transferable
• Profits (rights to enter land to remove material such as minerals or timber) were always alienable

Question 7

Leases

Answer 7

possessory rights to use a defined space for all uses not explicitly or implicitly prohibited in the lease

Question 8

License

Answer 8

A right, revocable at will by the grantor, granted by a possessor of real property to non-owners permitting entrance on their property - Does not run with the land (revocable at will, non-transferable, and non-devisable)

• Not protected by the takings clause of the Constitution or subject to the SOF
• Often intended to be temporary and for specific purposes
• No writing is required and licenses are often implied by circumstances
• E.g., a store open to the public invites the public in to browse or shop (only trespass after refusing to leave)

Question 9

Four EXCEPTIONS to free revocation of licenses:

Answer 9

1. License granted in return for consideration may become a K – subject to damages and other K remedies
2. License coupled with interest: An owner who sells personal property that is located on her land to another generally gives permission to the purchaser to enter the land to remove the licensee’s personal property
3. Promises to grant a license: An owner can revoke a license it has promised to grant (e.g,. a movie ticket), however the ticketholder can sue the theater owner for a breach of contract
4. Easements by estoppel: An owner who induces the licensee to act in reasonable reliance on the license may be prevented by the court from revoking the license

• Can occur when the grantor (1) grants an easement orally; (2) in a writing that does not comply with the specific requirements of the local SoF; (3) in the case of an ambiguous deed reference; or (4) if the grantor committed fraud by deceiving the grantee
• Some courts will only grant an easement by estoppel if there is fraud

Question 10

Easement vs. License

Answer 10

• focus on whether the parties intended to create a temp or permanent right and whether other policy considerations support or forbid creation of the easement

Question 11

The Statute of Frauds:

Answer 11

• Easements are interests in land that are generally required to be in writing before they will be enforceable
• Need writing signed by the grantor and sufficiently describe the easement and the grantee
• Numerous exceptions to the statute of frauds: (a) prescriptive easements; (b) easements by estoppel; (c) by implication; (d) by necessity; and (e) constructive trusts.

Question 12

Express easements are created 5 things

Answer 12

• (1) by deed (normally only signed by the grantor) in which (2) the named grantor (3) recites that she grants an easement (4) of a certain description to the (5) named grantee

Question 13

Limits on negative easements

Answer 13

• Traditionally limited to three kinds:

1. The right to lateral support of one’s building;
2. The right to prevent both light and air from being blocked by construction on neighboring land; and
3. The right to prevent interference with the flow of an artificial stream such as an aqueduct

Question 14

• Newly recognized negative easements include, generally created or recognized by statute:

Answer 14

• Conservation easements (preventing development of land for environmental purposes);
• Historic preservation easements (preventing destruction or alteration of buildings that have historical or architectural importance); and
• Solar easements (protecting access to sunlight for solar energy)

Question 15

When does an easement run with the land?

Answer 15

• Easements created by an express agreement run with the land only if (1) the easement in writing** (2) subsequent owners had **notice** of the easement at the time of purchase of the servient estate (3) the original grantor who created the easement **intended the easement to run with the land

Question 16

Easement run with the land 2 sides.

Answer 16

• Is the burden intended to run with the servient land? (must a future owner of the land allow the easement owner continued access to or control over her land under the terms of the original easement?)
• Is the benefit entitled to run with the dominant land? (is the easement owned by the person to whom it was originally granted or by whoever happens to own the parcel of land it was intended to benefit?)

Question 17

(Easement run with land) Writing, satisfied by

Answer 17

• Required writing is the original writing creating the easement (comply with SOF) and does not have to be included in subsequent deeds (although it is good legal practice to do so)
• Even if not included in subsequent deeds to the servient estate - future buyers are on notice of the writing in the earlier deed if it is in the “chain of title” and can be found by searching the deeds in the recording office

Question 18

(Easement run with land) Notice 3 kinds

Answer 18

1. Actual notice: Subsequent owners in fact know about the existence of the easement
2. Inquiry notice: Visible signs of use by non-owners (E.g., telephone poles, above-ground utility lines)
   
   • Would cause a reasonable owner to conduct further research to inquire whether an easement exists
3. Constructive notice: Deed conveying the easement is recorded in the proper register of deeds in the proper place and the deed is in the chain of title (title search of prior owners of the property would divulge)

Question 19

(Easement run with land) Intent

Answer 19

• Green v. Lupo: Easement ambiguous held appurtenant bc (1) the situations of the properties of the parties; (2) the surrounding circumstances at the time the instrument was executed; and (3) the practical construction of the instrument given by the parties by their conduct or admissions, suggested that the easement was appurtenant
• Why in the case of ambiguity, prefer appurtenant

1. (used to be and still is for recreational use) if in gross, the owner can’t sell without easement
2. Information burden is bigger for in gross (harder to find the owner - e.g. if 100 year old railroad co changed hands many times, hard to find the owner)/appurtenant – knock on door
3. Limit the number of persons with easements over the land to the number of neighboring parcels

Question 20

• Surrounding circumstances and policy considerations: easement useful separate from the neighboring land?

Answer 20

• If so, a utility easement, the courts are likely to hold that it was intended to be in gross
• If not, i.e., the easement is useful to anyone who owns the parcel of land benefited by the easement, courts are likely to hold that the easement is appurtenant

Question 21

Severability from the land

Answer 21

an appurtenant easement cannot be severed from the land (owner of the dominant estate who sells the land cannot retain benefit of servitude nor can the beneficiary of the easement transfer benefit of easement to another while retaining ownership of the dominant estate)

Question 22

Scope and Apportionment

Answer 22

• If the dominant estate is subdivided, then all the new owners own the benefit of the easement
• Generally the dominant estate can make changes to the easement land (widen the road it gets to use if there are 30 more people using it) provided: (1) it promotes the purpose of the easement, and (2) it doesn’t place an undue burden on the servient estate or others who have similar rights to the easement land
• But it will be limited to the similar scope – so if the original easement was to a single family house, the new subdivision will only get the easement if they are single family houses (it will not extend to commercial trucks)

Question 23

Scope and Apportionment 3 factors

Answer 23

1. whether this the kind of use contemplated by the grantor,
2. whether this use constitutes an unreasonable burden on the servient estate that wasn’t contemplated by the grantor, and
3. whether the easement can be subdivided (if it’s appurtenant the answer is YES, unless the use changes – like if a farm becomes a 100 unit family complex)

Question 24

Determining whether the use is of a kind contemplated by the grantor Really Complicated

Answer 24

• General rights of way - SPLIT:
• Majority: used for any reasonable purpose (right of way for road, can be used for utility poles)
• Some courts hold that rights of way are limited to the specific purposes contemplated at time created
• RS3: Absent clear evidence of the parties’ intent, most courts will find that the manner of use of an easement may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude so long as it does not unreasonably burden the servient estate (Henley: most courts will agree that an easement for electric and telephone purposes can be used for cable transmission)
• Extending the size is usually determined by the grantor’s intent
• Extending the use is prohibited absent contrary evidence of the intent of the parties

Question 25

Apportionability (subdividing for in gross easements) 3

Answer 25

* **Nonexclusive** (that both grantor and grantee have right to use it) – it cannot be apportioned, and it can be transferred only if it doesn’t interfere with the grantor’s use of the land * **Exclusive** (only the grantee gets to use it) – the grantee can apportion it or transfer it to another because the grantee has given up all rights to the land and it will interfere with the grantee * ***3d Restatement* rule** – in gross easement can be apportioned if: 1. It isn’t contrary to the intent if the original agreement, and 2. It does not created an unreasonable burden on the servient estate (this rule seems similar to the general rule, but with more breathing room (if it’s exclusive, there will generally not be a burden on the servient estate, but if it’s nonexclusive there generally will be a burden )

Question 26

Ambiguity

Answer 26

* if it isn’t clear whether it is exclusive or not, the burden of proof is on the easement’s original owner