I.Servitudes Are Both Negative and Affirmative

Property II - Kelly

Servitude- legal device that creates a right or an obligation that “runs with the land” or with an interest in land rest §1.1
a right or an obligation runs with the land if it “passes automatically to successive owners or occupiers of the land or the interest in land with which the right or obligation runs”
gives up freedom to do whatever you want to do on your land but allows you to control how your neighbors treat their land and your will protect your investment in prop value
non-possessory right to control use of another’s land

I.Servitudes are both negative and affirmative

II.Restricted Servitudes are created in 3 ways

A.Negative Esmt

B.Restrictive Covenants

C.Equitable Servitudes

III.Issues law of Servitudes

1.Formal Requirements of right to run with land- enforceable informally created expectations

2.Ambiguous meanings of servitudes

3.Substantive Requirements for validity of servitudes

Determine when land use restrictions are immediately void as against public policy
Determine when rights or obligations, agreed to and based by owners, will not run with land for future owners

How can servitudes be modified or terminated

Easement- permission is intended to be permanent or irrevocable – type of servitude (aka right of way across someone’s prop)- right to another’s land
affirmative easement- right to do something on someone else’s land
burdened land aka servient estate
restrictive servitude can be created in 3 forms- negative easements, restrictive covenants, and equitable servitudes traditionally
ex: B FSA to prop and a benefit if B has an easement over A’s prop- A has a burden A has lost her right to exclude B from the road so A has FSA and a burden
core characteristics: right to land use, statute of frauds applies(writing is technically required), non-revocable and usually permanent, transferable, if “appurtenant” easement is attached to the land not person and cannot be severed from land ownership package
Covenant- obligation on ones own land- type of servitude
law of covenants was created in England and called real covenants – enforceable by damages – when technical and substantive rules limited the ability of owners to create or enforce such covenants the equity cts developed law of equitable servitudes – used injunctive relief
affirmative covenant- promise I will do something
negative covenant- promise I won’t do something
ex: if A has a trailer and there is a covenant A has a burden of diminished freedom over own land use and B has a benefit of string of control over A’s land use
License- permission that is informal and revocable at will by owner of land – not servitudes
not transferable inherited or devisable by will
Licenses are revocable at will, no writing is required and many are implied by circumstances
Revocable licenses are not transferable and can not be inherited or left by will
License coupled with an interest- when one sells prop to another on their own land they give permission to enter the land and remove the new prop
core characteristics: Permission to enter, need not be in writing, terminable at will of grantor, non-transferable (except tickets)
possessory of real prop grants non-owner right to enter land
becomes trespass when licensee refused to leave after asked
4 circumstances when license cannot be freely revoked
A license coupled with an interest- ex: on land to buy car
Theater ticket
Esmt by estoppel
Constructive trusts
Easements by Estoppel (Irrevocable Licenses) pg 320
cts may prevent a real prop owner from revoking a license if the owner grants the licensee the right to invest in improving prop or otherwise induces the licensee to act in reasonable reliance on the license
the owner is estopped from denying continued access to his land for whatever period is deemed just under the circumstances – converts a revocable license to an irrevocable easement
what you get –
Holbrook v Taylor pg 321-briefed- there is a easement by estoppel when
LO induces licensee to act in reliance on access to prop (by granting permission or acquiescing) and
the LE acts in reasonable reliance on the permission (invests money or labor or other)and
irrevocable license and lasts “so long as its nature calls for” (prob perm)
Constructive Trusts pg 323
trust is a prop arrangement in which an owner called the settlor, transfers prop to another person called the trustee with instructions to manage the prop for the benefit of a third party called the beneficiary
trustee has legal title beneficiary has equitable or beneficial title
most are created expressly by a trust document or a will
sometimes cts treat a prop arrangement as if the grantor had created a trust regardless of intent aka constructive trusts
found to exist by operation of law or by construction of the court regardless of any lack of express agreement between or intent on the part of the parties
Rase v Castle Mountain Ranch Inc pg 323-briefed
Held that cabin owners had an equitable lien on prop
Cabinowners remedies- either LO pay full market price or give another 50 yr license
statute of frauds is adopted in all juris requires a writing to transfer most interests in real prop which easements are considered by the statute – must be in writing to transfer real prop and be enforceable
several exceptions easements by estoppel, easements by prescription, implication from prior use and necessity, constructive trust
Doctrine of Estoppel- your conduct has estopped you from having a claim of denial of an easement – unclean hands
Easements by Estoppel may be recognized in 2 diff contexts
oral easements- grantor may purport to convey an easement but fail to comply with formalities by doing it orally, or not within specific requirements, or ambiguous deed reference
enforce intent and especially if grantee invests substantially in reasonable reliance on this representation
may also be granted if grantor committed fraud by deceiving grantee
Irrevocable licenses-recognition of an easement by estoppel is likely to contradict the original intent of the grantor as above cases use was permissive yet both cases cts refused to allow it to be revoked to protect the interests of the licensee in relying on the relationship with the owner
Prescriptive Esmt
If scope of non-owner’s actions is limited rather that general may be granted a prescriptive esmt – limited right to use prop of another
Only affirmative esmt can be acquired by prescription
Same elements as adverse poss except actual use instead of actual possession- and doesn’t have to be exclusive
open and notorious- must be sufficiently visible and obvious to put a reasonable owner on notice that her prop is being occupied by a non-owner
exclusive- the use is of a type that would be expected of a true owner of the land in question and that the adverse claimant’s possession cannot be shared with the true owner-may require showing of true owner being excluded
tacking- succeeding periods of possession by diff persons may be added together – only if they are in privity with one another, meaning that the original adverse possessor purported to transfer title to the prop to the successor
adverse- use be nonpermissive – lack of permission is presumed – true owner must show permission evid
Hostility/adverse
No permission by TO(Majority view)
generally presumed (BOP on TO to overcome presumption)
did TO expressly grant permission? If yes= no hostility
did TO expressly deny permission? If yes =hostility
if silence or ambiguity as to permission = presumed hostile(acquiescence fits this situation)
if public access the prop presumed permissive
Some state also evaluate trespassers state of mind (Minority view) : Either
good faith required: TO must be not be aware they are trespassing(look for mistake or color of title) OR
bad faith required: TP must intentionally trespass
ouster- make an explicit statement of intent to take possession of the entire prop by adverse possession from a co-owner
4 approaches exist to evaluate the adverse possessor’s state of mind
objective test based on possession-majority- no permission
subjective tests based on
a claim of right- prove by claimant’s conduct
intentional dispossession and – must be aware occupying other’s prop and intend to oust or dispossess the true owner – vastly rejected because it rewards wrongdoers
good faith- only innocent possessors those who mistakenly occupy prop owned by someone else can acquire ownership by adverse possession
objective test makes state of mind irrelevant while subjective force adverse possessor to prove a particular attitude and to show non permissive
Sol varies from state to state
cts generally hold that adverse possession of gov prop does not exist
prescriptive easement elements are the same as those for adverse possession except you must show adverse use rather than possession- open, notorious, adverse, continuous, and uninterrupted use of the claimed esmt for the statutory period-
exclusive not required as it is for AP. Exclusivity is possession that is not shared with TO- an esmt can be shared with TO
adverse possession claims result in transfer of title to adverse possessor- prescriptive esmt claims result in the right to continue the kind and amount of use that persisted during the statutory period
negative esmt can not be acquired by prescription in US
must be trespassing
lawful use of one’s prop does not place true owner on notice that she must bring a lawsuit to protect rights
interfere too much with free development of land
Policy/Rationale for AP/PE
TP Conduct
Reward land use by claimant
Reliance on TO non-action
TO conduct
Recognize implicit Waiver/ acquiescence by TO
To inaction causes loss
2 Types of Implied Esmt- Implied by prior use(aka Quasi-Esmt) and Necessity
Easements Implied from Prior Use pg 332
implied esmt are recognized in particular kinds of relationships despite the absence of express contract to create an esmt
sometimes they effectuate the intent of the parties as manifested in their conduct
other times may contradict the actual intent and be implied by law as a result of a public policy judgment about the fair or efficient allocation of prop rights in context of relationship
exception to SOF
Most are right of way
Esmnt implied by Prior Use
Overall: Consider Grantors intent v Claimants interests v societal interests
Elements of Rule
Common ownership of land prior to severance
Use before severance
Of one part of the land that benefits another part of the land
That is apparent and continuous
Claimed esmt is necessary and beneficial to enjoyment of land
Necessary= “reasonably convenient” & important to the enjoyment of the land - is an elastic concept
Easements by Necessity pg 339
Overall: Consider Grantors intent v Claimants interests v societal interests
Elements of Rule
Common ownership of land prior to severance
Claimed esmt is “necessary” at time of severance
Necessary- w/out esmt no effective use of the land could be made
look for landlocked parcel(land surrounded by strangers(outsiders to the transaction of land)) & access only via grantors prop
lasts as long as necessity does
if option of priv landowner roadway still necessity because its public access you would need not to be a landlocked
the elements have to be met at time of sale of prop
Finn v Williams pg 339-briefed
Where an owner of land conveys a landlocked land a way by necessity exists over grantor – there was a dormant implied esmt of necessity since there was no public road access to prop
esmt runs with the land
has to exist at time of sale
policies underlying the esmt by necessity doctrine
to effectuate the intent of the parties
and to promote the efficient utilization of prop
law presumes the common owner intended the esmt

Creation by Express Agreement pg 344
Writing pg 345
Esmt must be in writing due to statute of frauds exceptions: prescriptive esmt, esmt by estoppel, implication, and necessity, and constructive trusts
Created by deed normally only signed by grantor – attaches to prop
A transfer of an esmt is analogous to a sale of prop
Treated as a grant of interest in real prop
Can buy and sell esmt
Rule Against Reserving an Easement in a Third Party pg 345
Some states traditionally held that O may not sell a parcel of prop to A while reserving a esmt over A prop in B
Many cts have changed the traditional rule allowing reservation of an esmt in 3rd party
Can simply convey the prop to the party who is intended to own the esmt the party then conveys the prop to the ultimate grantee reserving an esmt over the prop for herself
kind of pointless technicality
Validity: Substantive Limitations on the Kinds of Easements that can be created
Limits on Negative Easements pg 346
Cts trad limited the number of neg esmt that could be created by contract to several kinds
the right to lateral support of ones building
rights to prevent both light and air from being blocked by construction on neighboring land
and the right to prevent interference with the flow of an artificial stream such as an aqueduct
this was because used to not have recording devices in England
US always had a records system – never recognized neg esmt by prescription
New esmt – conservation esmt- to prevent devel of land held for environmental purposes – historic esmt- preventing destruction or alteration of buildings that have historical or architectural importance- solar esmt- to protect access to sun for solar energy
No Affirmative Easements to Act on One’s Own Land pg 347
Trad law of esmt did not allow creation of an affirm obligation to do something on someone’s own land for the bene of other owners
Running with the Land pg 348
Esmt attaches to the land ownership and burdens or benefits current and successor owners
Esmt by estoppel, prior use, and necessity generally run
If intended to and if they are reasonably necessary to enjoy these dominant estate
Requirements for the Burden to run with the Land pg 348- servient estate is burden w/esmt
In writing (in deed or referenced in a deed)
Intended to run (expressly stated or implied)
Notice
actual notice -subsequent owners know of existence
inquiry notice - visible signs of uses by non-owners which suggests that a reasonable buyer should investigate further whether there is an esmt
record/constructive notice -if in chain of title and properly recorded- a proper title search would reveal the existence of an esmt
Requirements for the Benefit to run with the Land (Appurtenant versus In Gross) pg 349- dominant estate is benefited by esmt
Test: Bene runs w/ land if it’s grantor intended it to
Intent can be express or implicit
If ambiguous, ask if esmt useful apart from ownership of land or is it primarily useful to anyone who owns the parcel? If the latter likely to run
Presumption is that Esmt is appurtenant and in gross is disfavored
Esmt is appurtenant- if both the bene and burden run with land ownership
automatically transfer as they run with land ownership
cannot be severed from land ownership (you cannot unbundle the sticks)
if benefit runs with land is it treated as if it were attached to the land even if dominant parcel is then subdivided
enforceable by future owners of benefitted land- flows to successors
esmt appurtenant limited to neighbors or nearby
Esmt in gross- if burden attaches to land, but bene does not (it is personal and or bene is unrelated to land ownership) ex: utility co
generally transferable, if intended to be
depends on nature of esmt and intent of grantor
esmt in gross anyone can have
if it does not run with land it is not attached to a particular parcel and there is no dominant estate
enforceable by beneficiary of esmt
if esmt is unclear must look to surrounding circumstances and policies for intent of grantor
Interpretation of Ambiguous Easements: Scope and Apportionment
Scope of Esmt
What kind of use is permissible?
Is it divisible among multiple new users?
depends on grantors intent
presumed if appurtenant
if in gross, is easmt exclusive to holder? If yes its apportionable
consider societal interests to fill in gap in grantors intent
what are physical parameters of esmt?
Is Esmt use a “surcharge” on the estate? (Is it an unreasonable additional burden?)
grantors intent?
balance interests of easement holder in free development v. interests on servient estate holder in security
Cox v Glenbrook Company pg 353-briefed
ct asks what is the scope of the esmt? Test: grantor’s intent
Can use of the esmt be subdivided? development is a natural occurrence and an appurtenant esmt will run to even subdivided owners of the original land esmt ran with- assumed unless explicitly stated in deed
Can esmt be widened? look to grantor’s intent in deed “as now located” Where width of a right of way is not specified in the grant it is limited to the width as it existed at the time of the grant
Is there a “surcharge” on the servient estate? (will esmt be overburdened) won’t know till people move in and there is evid
clearly an appurtenant esmt by deed
General rule is owner of an esmt may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created
Easements in Gross
Henley v Continental Cablevision of St Louis County Inc pg 358
where the servient owner retains the privilege of sharing the benefit conferred by the esmt it is said to be common or non-exclusive – divided utilization of the rights granted are presumptively allowable
The owner of an esmt may license or authorize third persons to use its right of way for purposes not inconsistent with the principal use granted- allowed to add whatever deemed necessary at anytime
commercial in gross esmt is presumed to allow to be share and esmt holder decides
non-commercial in gross esmt look for grantors intent
to see if owner of an esmt is misusing ask
whether the use is of the kind contemplated by the grantor
what kind of activities are encompassed
ex: general right of way may be used for any purpose including utilities in majority
minority- general right of way are limited to specific purpose contemplated at time of grant
grantors keep what don’t give away- when can’t speak for themselves ct must decide whether broad or narrow interpretation should apply
whether the use is so heavy that it constitutes an unreasonable burden on the servient estate not contemplated by the grantor
when the grantors intent is ambiguous the cts must balance the interests of the esmt owner in freedom to