Property II - Kelly

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  1. Servitude- legal device that creates a right or an obligation that “runs with the land” or with an interest in land rest §1.1
  2. 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”
  3. 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
  4. 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

  1. Determine when land use restrictions are immediately void as against public policy
  2. Determine when rights or obligations, agreed to and based by owners, will not run with land for future owners
  1. How can servitudes be modified or terminated
  1. 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
  2. affirmative easement- right to do something on someone else’s land
  3. burdened land aka servient estate
  4. restrictive servitude can be created in 3 forms- negative easements, restrictive covenants, and equitable servitudes traditionally
  5. 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
  6. 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
  7. Covenant- obligation on ones own land- type of servitude
  8. 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
  9. affirmative covenant- promise I will do something
  10. negative covenant- promise I won’t do something
  11. 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
  12. License- permission that is informal and revocable at will by owner of land – not servitudes
  13. not transferable inherited or devisable by will
  14. Licenses are revocable at will, no writing is required and many are implied by circumstances
  15. Revocable licenses are not transferable and can not be inherited or left by will
  16. 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
  17. core characteristics: Permission to enter, need not be in writing, terminable at will of grantor, non-transferable (except tickets)
  18. possessory of real prop grants non-owner right to enter land
  19. becomes trespass when licensee refused to leave after asked
  20. 4 circumstances when license cannot be freely revoked
  21. A license coupled with an interest- ex: on land to buy car
  22. Theater ticket
  23. Esmt by estoppel
  24. Constructive trusts
  25. Easements by Estoppel (Irrevocable Licenses) pg 320
  26. 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
  27. 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
  28. what you get –
  29. Holbrook v Taylor pg 321-briefed- there is a easement by estoppel when
  30. LO induces licensee to act in reliance on access to prop (by granting permission or acquiescing) and
  31. the LE acts in reasonable reliance on the permission (invests money or labor or other)and
  32. irrevocable license and lasts “so long as its nature calls for” (prob perm)
  33. Constructive Trusts pg 323
  34. 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
  35. trustee has legal title beneficiary has equitable or beneficial title
  36. most are created expressly by a trust document or a will
  37. sometimes cts treat a prop arrangement as if the grantor had created a trust regardless of intent aka constructive trusts
  38. 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
  39. Rase v Castle Mountain Ranch Inc pg 323-briefed
  40. Held that cabin owners had an equitable lien on prop
  41. Cabinowners remedies- either LO pay full market price or give another 50 yr license
  42. 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
  43. several exceptions easements by estoppel, easements by prescription, implication from prior use and necessity, constructive trust
  44. Doctrine of Estoppel- your conduct has estopped you from having a claim of denial of an easement – unclean hands
  45. Easements by Estoppel may be recognized in 2 diff contexts
  46. 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
  47. enforce intent and especially if grantee invests substantially in reasonable reliance on this representation
  48. may also be granted if grantor committed fraud by deceiving grantee
  49. 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
  50. Prescriptive Esmt
  51. 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
  52. Only affirmative esmt can be acquired by prescription
  53. Same elements as adverse poss except actual use instead of actual possession- and doesn’t have to be exclusive
  54. 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
  55. 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
  56. 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
  57. adverse- use be nonpermissive – lack of permission is presumed – true owner must show permission evid
  58. Hostility/adverse
  59. No permission by TO(Majority view)
  60. generally presumed (BOP on TO to overcome presumption)
  61. did TO expressly grant permission? If yes= no hostility
  62. did TO expressly deny permission? If yes =hostility
  63. if silence or ambiguity as to permission = presumed hostile(acquiescence fits this situation)
  64. if public access the prop presumed permissive
  65. Some state also evaluate trespassers state of mind (Minority view) : Either
  66. good faith required: TO must be not be aware they are trespassing(look for mistake or color of title) OR
  67. bad faith required: TP must intentionally trespass
  68. ouster- make an explicit statement of intent to take possession of the entire prop by adverse possession from a co-owner
  69. 4 approaches exist to evaluate the adverse possessor’s state of mind
  70. objective test based on possession-majority- no permission
  71. subjective tests based on
  72. a claim of right- prove by claimant’s conduct
  73. 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
  74. good faith- only innocent possessors those who mistakenly occupy prop owned by someone else can acquire ownership by adverse possession
  75. objective test makes state of mind irrelevant while subjective force adverse possessor to prove a particular attitude and to show non permissive
  76. Sol varies from state to state
  77. cts generally hold that adverse possession of gov prop does not exist
  78. 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-
  79. exclusive not required as it is for AP. Exclusivity is possession that is not shared with TO- an esmt can be shared with TO
  80. 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
  81. negative esmt can not be acquired by prescription in US
  82. must be trespassing
  83. lawful use of one’s prop does not place true owner on notice that she must bring a lawsuit to protect rights
  84. interfere too much with free development of land
  85. Policy/Rationale for AP/PE
  86. TP Conduct
  87. Reward land use by claimant
  88. Reliance on TO non-action
  89. TO conduct
  90. Recognize implicit Waiver/ acquiescence by TO
  91. To inaction causes loss
  92. 2 Types of Implied Esmt- Implied by prior use(aka Quasi-Esmt) and Necessity
  93. Easements Implied from Prior Use pg 332
  94. implied esmt are recognized in particular kinds of relationships despite the absence of express contract to create an esmt
  95. sometimes they effectuate the intent of the parties as manifested in their conduct
  96. 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
  97. exception to SOF
  98. Most are right of way
  99. Esmnt implied by Prior Use
  100. Overall: Consider Grantors intent v Claimants interests v societal interests
  101. Elements of Rule
  102. Common ownership of land prior to severance
  103. Use before severance
  104. Of one part of the land that benefits another part of the land
  105. That is apparent and continuous
  106. Claimed esmt is necessary and beneficial to enjoyment of land
  107. Necessary= “reasonably convenient” & important to the enjoyment of the land - is an elastic concept
  108. Easements by Necessity pg 339
  109. Overall: Consider Grantors intent v Claimants interests v societal interests
  110. Elements of Rule
  111. Common ownership of land prior to severance
  112. Claimed esmt is “necessary” at time of severance
  113. Necessary- w/out esmt no effective use of the land could be made
  114. look for landlocked parcel(land surrounded by strangers(outsiders to the transaction of land)) & access only via grantors prop
  115. lasts as long as necessity does
  116. if option of priv landowner roadway still necessity because its public access you would need not to be a landlocked
  117. the elements have to be met at time of sale of prop
  118. Finn v Williams pg 339-briefed
  119. 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
  120. esmt runs with the land
  121. has to exist at time of sale
  122. policies underlying the esmt by necessity doctrine
  123. to effectuate the intent of the parties
  124. and to promote the efficient utilization of prop
  125. law presumes the common owner intended the esmt
  1. Creation by Express Agreement pg 344
  2. Writing pg 345
  3. Esmt must be in writing due to statute of frauds exceptions: prescriptive esmt, esmt by estoppel, implication, and necessity, and constructive trusts
  4. Created by deed normally only signed by grantor – attaches to prop
  5. A transfer of an esmt is analogous to a sale of prop
  6. Treated as a grant of interest in real prop
  7. Can buy and sell esmt
  8. Rule Against Reserving an Easement in a Third Party pg 345
  9. Some states traditionally held that O may not sell a parcel of prop to A while reserving a esmt over A prop in B
  10. Many cts have changed the traditional rule allowing reservation of an esmt in 3rd party
  11. 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
  12. kind of pointless technicality
  13. Validity: Substantive Limitations on the Kinds of Easements that can be created
  14. Limits on Negative Easements pg 346
  15. Cts trad limited the number of neg esmt that could be created by contract to several kinds
  16. the right to lateral support of ones building
  17. rights to prevent both light and air from being blocked by construction on neighboring land
  18. and the right to prevent interference with the flow of an artificial stream such as an aqueduct
  19. this was because used to not have recording devices in England
  20. US always had a records system – never recognized neg esmt by prescription
  21. 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
  22. No Affirmative Easements to Act on One’s Own Land pg 347
  23. 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
  24. Running with the Land pg 348
  25. Esmt attaches to the land ownership and burdens or benefits current and successor owners
  26. Esmt by estoppel, prior use, and necessity generally run
  27. If intended to and if they are reasonably necessary to enjoy these dominant estate
  28. Requirements for the Burden to run with the Land pg 348- servient estate is burden w/esmt
  29. In writing (in deed or referenced in a deed)
  30. Intended to run (expressly stated or implied)
  31. Notice
  32. actual notice -subsequent owners know of existence
  33. inquiry notice - visible signs of uses by non-owners which suggests that a reasonable buyer should investigate further whether there is an esmt
  34. record/constructive notice -if in chain of title and properly recorded- a proper title search would reveal the existence of an esmt
  35. Requirements for the Benefit to run with the Land (Appurtenant versus In Gross) pg 349- dominant estate is benefited by esmt
  36. Test: Bene runs w/ land if it’s grantor intended it to
  37. Intent can be express or implicit
  38. 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
  39. Presumption is that Esmt is appurtenant and in gross is disfavored
  40. Esmt is appurtenant- if both the bene and burden run with land ownership
  41. automatically transfer as they run with land ownership
  42. cannot be severed from land ownership (you cannot unbundle the sticks)
  43. if benefit runs with land is it treated as if it were attached to the land even if dominant parcel is then subdivided
  44. enforceable by future owners of benefitted land- flows to successors
  45. esmt appurtenant limited to neighbors or nearby
  46. 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
  47. generally transferable, if intended to be
  48. depends on nature of esmt and intent of grantor
  49. esmt in gross anyone can have
  50. if it does not run with land it is not attached to a particular parcel and there is no dominant estate
  51. enforceable by beneficiary of esmt
  52. if esmt is unclear must look to surrounding circumstances and policies for intent of grantor
  53. Interpretation of Ambiguous Easements: Scope and Apportionment
  54. Scope of Esmt
  55. What kind of use is permissible?
  56. Is it divisible among multiple new users?
  57. depends on grantors intent
  58. presumed if appurtenant
  59. if in gross, is easmt exclusive to holder? If yes its apportionable
  60. consider societal interests to fill in gap in grantors intent
  61. what are physical parameters of esmt?
  62. Is Esmt use a “surcharge” on the estate? (Is it an unreasonable additional burden?)
  63. grantors intent?
  64. balance interests of easement holder in free development v. interests on servient estate holder in security
  65. Cox v Glenbrook Company pg 353-briefed
  66. ct asks what is the scope of the esmt? Test: grantor’s intent
  67. 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
  68. 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
  69. Is there a “surcharge” on the servient estate? (will esmt be overburdened) won’t know till people move in and there is evid
  70. clearly an appurtenant esmt by deed
  71. 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
  72. Easements in Gross
  73. Henley v Continental Cablevision of St Louis County Inc pg 358
  74. 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
  75. 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
  76. commercial in gross esmt is presumed to allow to be share and esmt holder decides
  77. non-commercial in gross esmt look for grantors intent
  78. to see if owner of an esmt is misusing ask
  79. whether the use is of the kind contemplated by the grantor
  80. what kind of activities are encompassed
  81. ex: general right of way may be used for any purpose including utilities in majority
  82. minority- general right of way are limited to specific purpose contemplated at time of grant
  83. grantors keep what don’t give away- when can’t speak for themselves ct must decide whether broad or narrow interpretation should apply
  84. whether the use is so heavy that it constitutes an unreasonable burden on the servient estate not contemplated by the grantor
  85. when the grantors intent is ambiguous the cts must balance the interests of the esmt owner in freedom to