MBE Real Property - Servitudes

Licenses;

Easements;

Equitable servitudes;

Profits; and

Covenants

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

Land/property that benefits from the easement

Land burdened by the easement

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

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

Only allowed for “LASS”:

Light;

Air;

Support; and

Stream water from an artificial flow

Only expressly - must be signed and in writing

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

⭐️ Attached to the land and not a person

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

Yes, transferred automatically b/c attached to the dominant estate. Does not need to be explicitly stated in the transfer.

Not transferrable unless for commercial purpose

Prescription;

Implication;

Necessity; or

Grant (signed in writing)

💡Remember “P-I-N-G”

Grant: express grant of easement, signed and in writing by servient estate to satisfy SOF (if easement could exist for longer than one year)

Reservation: grantor conveys title, but reserves right to easement

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

Continuous;

Open;

Hostile; and

Actual

⚠️ No exclusivity requirement

Easement implied by prior use.

Exists when:

Easement existed on a single tract of land that was subsequently severed into the servient and dominant estate;

Prior use was continous and apparent;

Parties intended the easement to continue; and

Easement is reasonably necessary for enjoyment of dominant estate

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

Easement is absolutely necessary to access the property

Created if:

Dominant and servient estates were once a single parcel under common ownership; and

Severance of the parcel made the easement absolutely necessary

Terms or conditions that created it

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.

Only after providing adequate notice and an opportunity for co-owners to participate in repair decisions

Abandonment;

Destruction of servient estate;

Estoppel;

Expiration;

End of necessity

Merger;

Prescription;

Release; or

Severance.

If servient owner willfully caused the destruction

Continual interference with the easement for the statutory period

Holder takes affirmative action/steps to indicate intent to abandon; and

Actually abandons easement

⚠️ Mere words or nonuse are insufficient to terminate easement

Easement holder leads servient estate to reasonably believe they intend to abandon the easement; and

Servient estate detrimentally relies on the holder’s statements

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

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

When the necessity ends

Easement is unenforceable against the BFP

Non-possessory right to enter servient estate and remove natural resources from it. Generally governed by the same rules as easements.

Ex. lumber, coal, soil

Misuse or overuse of natural resources

Freely revocable, non-possessory right to use the land

No, will result in loss of license

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

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

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

Affirmative: requires landowner to do something

Negative: forbids landowner from doing something

Writing: original agreement in writing;

Intent: parties intended to bind successors (courts are liberal in finding requisite intent);

Touches and concerns the land;

Horizontal and vertical privity; and

Notice: successor had notice of the covenant when she took

Writing: original agreement in writing;

Intent: parties intended benefit to run;

Touches and concerns the land; and

Successor is in vertical privity with original parties

⚠️ Horizontal privity is not required

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

Relationship between original covenant parties.

Examples:

Grantor-grantee

Mortgagor-mortgagee

Landlord-tenant

⚠️ Note: Difficult to establish

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

Monetary damages

Never, would violate 14th Amendment

Release (in writing);

Merger; or

Condemnation

Covenants enforced by equity (e.g. injunctions)

Writing: original agreement in writing;

Intent: original parties must intend to bind successors;

Touches and concerns the land;

Notice: burdened party had actual, record, or inquiry notice (not required for benefit to run)

Also called the "common scheme doctrine." Allows owners in a subdivision to enforce restrictions on an unrestricted lot owner

Requirements:

When sales began, developer had a common scheme for subdivision; and

Owner of unrestricted lot had notice (actual, record, or inquiry) of the restriction

Recording a map detailing the scheme;

Putting restrictions in lot deeds; or

Letting purchasers know about the plan orally

Actual notice?

Inquiry notice?

Record notice?

Actual: Literal knowledge of restriction

Inquiry: Reasonable neighborhood inspection would indicate common restrictions (ie all houses are single family home)

Record: Restriction is in owner's chain of title

Pervasive changes that fundamentally alter the neighborhood;

Laches;

Estoppel;

Acquiescence (when party didn't enforce the servitude on other parties, so their right to enforce may be waived)

Unclean hands (party seeking enforcement is violating restriction on their own land)

Injunction

Unreasonable interference with use and enjoyment of land