Servitudes

Question 1

What are the 5 categories of servitudes?

Answer 1

1. Licenses;
2. Easements;
3. Equitable servitudes;
4. Profits; and
5. Covenants

Question 2

Define

easement

Answer 2

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

Question 3

Define

dominant estate

Answer 3

Land/property that benefits from the easement

Question 4

Define

servient estate

Answer 4

Land burdened by the easement

Question 5

Define

affirmative easement

Answer 5

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

Question 6

Define

negative easement

Answer 6

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

Only allowed for “LASS”:

1. Light;
2. Air;
3. Support; and
4. Stream water from an artificial flow

Question 7

How are negative easements created?

Answer 7

Only expressly - must be signed and in writing

Question 8

Define

easement appurtenant

Answer 8

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

⭐️ Attached to the land and not a person

Question 9

Define

easement in gross

Answer 9

Benefits a person or entity instead of a parcel of land. No dominant estate involved, only servient estate.

Ex. Billboard or power lines on servient estate

Question 10

Can you transfer:

1. An easement appurtenant?
2. Easement in gross?

Answer 10

1. Yes, transferred automatically b/c attached to the dominant estate. Does not need to be explicitly stated in the transfer.
2. Not transferrable unless for commercial purpose

Question 11

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

Answer 11

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

💡Remember “P-I-N-G”

Question 12

2 ways to create an express easement?

Answer 12

1. 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. Reservation: grantor conveys title, but reserves right to easement

Question 13

How do you create an easement by prescription?

Answer 13

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

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

⚠️ No exclusivity requirement

Question 14

What is an easement by implication and how is it created?

Answer 14

Easement implied by prior use.

Exists when:

1. Easement existed on a single tract of land that was subsequently severed into the servient and dominant estate;
2. Prior use was continous and apparent;
3. Parties intended the easement to continue; and
4. Easement is reasonably necessary for enjoyment of dominant estate

Question 15

When can an easement be implied without prior use?

Answer 15

• If lots are sold in a subdivision with a recorded plot or map
• If holder has a profit-à-prendre that makes it necessary to use the land to extract materials

Question 16

What is an easement by necessity and how is it created?

Answer 16

Easement is absolutely necessary to access the property

Created if:

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 17

How do you determine the scope of an easement?

Answer 17

Terms or conditions that created it

Question 18

What constitutes expanding the scope of an easement? Is it allowed?

Answer 18

Overusing the easement or going outside the scope of reasonable use.

No, not allowed to unilaterally expand the scope. Servient estate can seek injunction to prevent further violations.

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 the 9 ways to terminate an easement?

Answer 20

1. Abandonment;
2. Destruction of servient estate;
3. Estoppel;
4. Expiration;
5. End of necessity
6. Merger;
7. Prescription;
8. Release; or
9. Severance.

Question 21

When does destruction of the servient estate NOT terminate an easement?

Answer 21

If servient owner willfully caused the destruction

Question 22

How do you terminate an easement by prescription?

Answer 22

Continual interference with the easement for the statutory period

Question 23

How do you terminate an easement by abandonment?

Answer 23

1. Holder takes affirmative action/steps to indicate intent to abandon; and
2. Actually abandons easement

⚠️ Mere words or nonuse are insufficient to terminate easement

Question 24

How do you terminate an easement by estoppel?

Answer 24

1. Easement holder leads servient estate to reasonably believe they intend to abandon the easement; and
2. Servient estate detrimentally relies on the holder’s statements

Question 25

How do you terminate an easement by **severance**?

Answer 25

For an easement appurtenant, any attempt to **sever the easement from the dominant estate** will sever the easement

Question 26

How can you terminate an easement by **merger**?

Answer 26

Owner **acquires fee title of underlying** estate (i.e. same owner owns both the easement and the servient estate). The easement will "merge" into the title and not be revived unless by new express grant

Question 27

When is an easement by necessity **automatically** terminated?

Answer 27

When the necessity ends

Question 28

What happens if property is sold to bona fide purchaser **without notice** **of the easement**?

Answer 28

Easement is **unenforceable** against the BFP

Question 29

# Define profit ("profit à prendre")

Answer 29

Non-possessory right to **enter servient estate** and **remove natural resources** from it. Generally governed by the same rules as easements. ## Footnote Ex. lumber, coal, soil

Question 30

How is a **profit terminated**?

Answer 30

Misuse or overuse of natural resources

Question 31

# Define license

Answer 31

**Freely revocable, non-possessory** right to use the land

Question 32

Is a license **transferrable?**

Answer 32

No, will result in loss of license

Question 33

Differentiate between a **license** and an **easement**

Answer 33

**Licenses:** * Freely revocable (unless detrimental reliance or coupled with interest) * Privilege, not an interest in land * Can be created without consideration or writing (no SOF requirement) **Easements:** * Last for specific period or indefinitely * Interest in land * Must satisfy SOF

Question 34

# Define covenants

Answer 34

Servitudes that either **restrict** landowners from doing certain things or **impose obligations** on them

Question 35

# Define real covenants

Answer 35

Covenants concerning real property that "run with the land" (i.e. bind successors)

Question 36

Differentiate between an **affirmative** vs. **n****egative** convenant

Answer 36

Affirmative: requires landowner to do something Negative: forbids landowner from doing something

Question 37

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

Answer 37

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 possession

Question 38

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

Answer 38

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 39

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

Answer 39

Covenant affects both parties *as landowners*, not as individuals (very low bar)

Question 40

# Define horizontal privity

Answer 40

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

Question 41

# Define vertical privity

Answer 41

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

Question 42

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

Answer 42

Monetary damages

Question 43

Are **racially based** covenants enforceable?

Answer 43

Never, would violate 14th Amendment

Question 44

How do you **terminate** a covenant?

Answer 44

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

Question 45

# Define equitable servitudes

Answer 45

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

Question 46

Elements for an **equitable servitude**

Answer 46

1. **Writing**: original agreement in writing; 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 47

What is an **implied reciprocal negative servitude** and what are the **requirements**?

Answer 47

Also called the "common scheme doctrine." Allows owners in a subdivision to **enforce restrictions on an unrestricted lot owner** Requirements: 1. When sales began, developer had a **common scheme for subdivision**; and 2. Owner of unrestricted lot had **notice** (actual, record, or inquiry) of the restriction

Question 48

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

Answer 48

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

Question 49

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

Answer 49

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 50

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

Answer 50

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 51

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

Answer 51

Injunction

Question 52

# Define nuisance

Answer 52

Unreasonable interference with use and enjoyment of land