Property II - Kelly
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- 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