An Easement Is a Privilege to Use the Land of Another

Easements

An easement is a privilege to use the land of another.

An affirmative easement is one entitling its owner to do a physical act on the land.

A negative easement allows the owner to restrict others from doing certain deeds on the servient estate.

Definitions: 1) Dominant estate-Property getting the benefit of the easement

2) Servient Estate-Property burdened by the easement

Licenses-Permission to enter another’s land

-Revocable

-Can be explicit or implicit

-Not transferable

-No Statute of Frauds issues

Profit a prende-Right to enter another persons land without liability for trespass, and remove minerals, wild animals, and fish for profit. A person with a profits interest has an easement to venture onto the property as necessary to enjoy the profits interest.

I.  Implied Easements

A.  Easements Implied from prior use

i)  Necessary elements

a)  The unity of ownership is severed (i.e. there was a common owner and then the land was divided.)

b)  The use was in place before the parcel was severed

c)  The use must have been visible or apparent at the time of the severance(Roads and sewers)

d)  The easement is reasonably necessary for the enjoyment of the dominant estate (necessity)

B.  Easement Implied by Necessity

i)  Necessary elements

a)  A common owner severed the property (unity of ownership)

b)  No prior use requirement-I.E. not requirement that the use was in place at the time of the creation of the easement.

c)  There was a necessity for egress and ingress existed at the time of the severance (There was a need for the easement at the time of the severance.)

d)  The easement is strictly necessary for egress from and ingress to a landlocked parcel.

C.  Easement by Prescription-Adverse Use

i)  Necessary Elements

a)  Same as adverse possession

-Actual use

-Open and notorious

-Hostile use

-Continuous and uninterrupted use

-Exclusive use (in a minority of states)

-For the prescribed statutory period

D.  Easements by Estoppel

i)  Definition-Created where A allows B to use A’s land (by license) under circumstances where A should reasonably foresee that B would rely on that license for a period of time.

ii)  Permission PLUS investment (reliance)

iii)  Failure on the part of the A to stop the use (Like adverse possession)

iv)  Counter-argument-Most courts will not grant this easement if the claimant should have verified his rights before investing in the property.

v)  Examples: Purchasers from a developer who buy after seeing a plat will succeed if the plat showed roads in the subdivision in getting the right to use those roads.

vi)  Some courts don’t recognize this because of SOF issues. They grant an irrevocable license which does not need a writing.

vii)  Some courts use the part performance theory

viii)  One or two states don’t allow any of these theories.

II.  Requirements for Running with the Land

A.  Burdens running with the land

i)  Must be described in detail in the deed (or some other form)

ii)  Intent by the grantor that the easement should run with the land

iii)  Notice

-Actual-Explicit knowledge

-Inquiry-Based on the physical condition of the land (I.E. a roadway across your land)

-Constructive-Recorded in the deed or title

B.  Benefits running with the land

i)  Intent-Did the grantor intend for the benefit to run?

ii)  Notice of some kind

iii)  Easement in writing

Express Easements

An express easement must be in writing to satisfy the statute of frauds.

When a grantor conveys property to someone else and maintains an easement for himself, this is called an easement by reservation

A.  Appurtenants- Benefits the possessor of the land (Most common)(Dominant estate. The land that is burdened is called the serviant estate)

i)  Subdividable (Presumed, unless the intent of the grantor was that it not be)

ii)  Must look to the language of the deed to determine the limits of the easement.

iii)  The determinative test is whether the benefit is intimately tied to a particular piece of land (the dominant tenement)

iv)  Fully transferable and the burdens and benefits run with the land.

B.  In Gross- An easement in gross is sometimes called a "personal" easement. It is not tied to any particular piece of land.

i)  There is no dominant estate; the burden is imposed on the servient estate with a benefit that runs to a person or entity rather than with the land.

ii)  It does not "run with the land" and cannot be transferred or inherited. (Not assignable), unless it is a commercial easement(presumed transferable)

iii)  Pipeline easements and other public utility easements are easements in gross.

iv)  Exclusive and Non-exclusive easements:

a)  Exclusive easements in gross are those where the easement holder has the sole authority to authorize others to use the easement. The person has the right to permit many others to use the easement as long as the burden on the servient estate does not amount to a surcharge or misuse of the easement.

b)  Non-exclusive-One in which the easement holder can not prevent the servient estate from granting the right to use the easement to other persons. Can’t be subdivided or apportioned any rights to the easement.

Termination of Easements

1)  By an agreement in writing

2)  By their own terms-“This easement will only last 10 years”

3)  By merger (When the dominant estate and the servient estate are owned by the same person)

4)  By abandonment-Intent to abandon must be shown by explicit statement. Words alone are not sufficient

5)  Adverse possession- Stopping the person from using the easement

6)  Courts may sometimes terminate by “frustration of purpose” (I.E. the easement is no longer needed)

7)  Some states require a re-titling of the easement every 50 years or so

Transfer of Easements

When the title of a servient estate is transferred, the burden of the easement remains with the land.

When there is a benefit on the land, it depends on whether the easement was an appurtment or in gross. An appurtment normally passes with the transfer of the dominant estate. Also if the dominant estate is such that each of the smaller lots can benefit from the easement, then each will generally be permitted to do so.

-Easements in gross under common law are not transferable. Modern view holds that easements in gross used for commercial purposes are transferable.

Restrictive Covenants

To enforce the burden to run with the land

1) In writing

2) Clearly intended to run with the land-Benefit/Burdens

3) Notice

-Actual

-Inquiry

-Constructive

4) Touch and Concern the land (Reasonableness of the covenant)

Does the covenant restrict the quality and mode of enjoyment of the land?

(I.E. Residential Limits, Homeowners Assoc. Fees, Reasonable restrictive covenants)-The third restatement eliminates the touch and concern requirement.

5) Privity- (Economic Damages only)

Horizontal-Mutual promises between the two parties and there was a transaction of the land at the same time as the promise. (Instantaneous)

Examples-Sales, Leases (Mutual), Grant of an easement (Mutual)

a.  Running of burdens:

i. For burden to run to an assignee, the covenant must be formed at the time of the horizontal privity.

b.  Benefit – Privity is not required in most jurisdictions for running of benefit.

Vertical-Privity between an original party to covenant and a subsequent assignee. Does not have to be direct.(I.E. The previous owner was not an original but was assigned the land by an original party)

Public Policy Rationale: reason for privity requirement was to keep land free of burdens undiscoverable by purchaser inspecting the land. Since a benefit increases marketability there is no requirement of privity.

i)  Strict Vertical privity (The seller did not retain any interest in the property-I.E. full sale)

ii)  Relaxed Vertical privity (Seller retains some interest in the land) (Most states allow this) (I.E. Whitensville)

-Leases and subleases

a.  Burden: privity requires that assignee succeed to the identical estate owned by promisor.

1. Estate must be of same duration(i.e. if you had a fee simple and you gave someone a life estate, there would be no vertical privity.) Covenants run with estates in land - only will run with identical estate
2. minority rule - no privity required to enforce a burden (3rd Restatement)

b.  Benefits: Traditional rule holds that a benefit can be enforced by anyone who has taken possession of the promisee’s property with the promisee’s permission.

B has promised A that B and his assigns will never use Blackacre in a certain way (e.g. for retail purposes) and that if they do they will pay damages. The issues are whether B’s assignee, D is burdened by this promise (i.e. can be liable for damages) and whether C (A’s assignee) can benefit

Damages for a Breach of Covenant-If all 5 burdens are satisfied, then you can get injunctive relief and economic damages. If only the first four elements are satisfied, then you can only get injunctive relief)

Policy against enforcing a benefit in gross

-A benefit in gross: some one who no longer owns a property is attempting to control the land (Not enforceable) (I.E. Developers after they have fully developed the land)

-Exception: Homeowner’s association

To enforce the benefit to run with the land

-Intent to run

-Touch and concern (Presumption that if intent to run with the land is satisfied, then touch and concern is satisfied)

-If the benefit touches and concerns the promisee’s land, the benefit will run though the burden does not. That is, the benefit can run even if the burden is in gross, i.e. personal to the promisor.

Covenants against Competition

Reasonable covenants against competition may be considered to run with the land when they a serve a purpose of facilitating orderly and harmonious development for commercial use. (Whitinsville Plaza)

Changes in the area

A restrictive covenant will not be enforced where a fundamental change has occurred in the intended character of the neighborhood that renders the benefits underlying imposition of the restrictions incapable of enjoyment. The entire neighborhood does not need to be changed in order to determine if the covenant is still needed.

Equitable Servitudes

1. Definition:
2. Requirements
3. Touch and Concern: both real covenants and eq. servitudes must touch and concern the land
4. Notice: Neither is enforceable against a bona fide purchaser without notice
5. Creation-Need not be in writing.
6. Enforcement by or against assignees (requirements)

3.  Intent

1. no technical words (i.e. “assigns” - see covenants running at law) are required
2. look to purpose of covenant and surrounding circumstances
3. Privity of Estate - generally not required
4. tracing title - some states require person seeking to enforce to trace title to original promisee (i.e. must be able to trace to original subdivision purchaser) (minority view)
5. Third Party Beneficiary - majority of states allow 3P beneficiary to enforce covenant in law or equity if contracting parties so intend.
6. Distinguish - easements - easements cannot be reserved in favor of 3rd parties
7. Touch and Concern Requirement-The big idea, is that the covenant must have something to do with the way land is used or enjoyed, it must connect to land use. If it is a promise that is integrated with your property rights and flowsto successsorownersof the property, even tough they themselves did not make the promise, the touch & concern element ensuresthat the promisewill stick only if it isconnected to the property itself (and is not in the nature ofa personal K).

Most covenants do touch & concern the land, for example:a covenant banning commericial uses satisfies the rule because it governs how the landis used by WHOEVER IS THE OWNER. It connects to the property, not the individual owner. Affirmative covenants (like the obligation to pay association fees) have historicaly been morecontroversial, but now are uniformly held to touch & concern the land.Why?even though it is a promise to pay money that feels more like a personal K, the fee connects to the property and enhances it value and quality.

1. generally: touch and concern is a general notion - affecting physical use or enjoyment or economic value may qualify.
2. Negative Covenants - touch and concern by restricting what owner of burdened land can do; also enhance the value of benefited land.

i.  Covenants not to compete

ii.  but note: in some jurisdictions this do not touch and concern. rationale: disfavored covenants because they are anti-competitive

1. Affirmative Covenants-Modern view - permit affirmative covenants to run both in law and equity; usually held to touch and concern
2. exception: an affirmative covenant that imposes a substantial burden on property which receives no benefit from it and has no clear expiration date may be found not to touch and concern
3. Covenant to pay for water has no means of expiration; thus doesn't touch and concern even though there is intent and privity; so it does not run.
4. Perpetuity Problem

a.  covenants w/out time limitations are problematic

i)  probably will not touch and concern for affirmative covenants

ii)  may need statutory support for negative covenants (i.e. historical preservation)

b.  touch and concern used as a catch-all for policy concerns - doesn't just deal w/ physical nature

c.  Want to avoid undue restrains on alienation that last forever

i)  need to have some mechanism to get rid of covenants if conditions change

ii)  note: because changed conditions is an equitable doctrine this is especially important for real covenants / enforcement at law

1. Notice-Must be actual, constructive or inquiry notice

Implied Negative Reciprocal Servitudes

Implying covenants on land that are not specifically stated

Rules:

a)  Must prove a common plan(look at the pattern of the developer when they start selling the plots) and a common grantor(the landowner group)

i.  What constitutes a common plan? Must find a suitable number of lots in a subdivision are subjected to a common covenant. A variation in the terms or incidence of the covenants may indicate that the common owner did not intend a common scheme.

ii.  When does a common scheme begin? Lots may be sold before a common plan is developed. Lots sold before the common plan are not subject to the covenant.