Property

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Servitudes

Servitudes are property law tools that allow people to make land use arrangements.

Easements

An easement is the right to use land that is in the possession of another for a limited purpose. Usually, an easement allows the holder to access another parcel of land. The land benefited by an easement is called the dominant tenement (or estate); the land burdened by the easement is called the servient tenement (or estate).

Types of easements: All easements are classified as affirmative or negative and appurtenant or in gross.
1. An affirmative easement allows the holder to do something on the servient land.
  - Example: Frank owns Grayacre but cannot access Grayacre without crossing Grace’s land, Redacre. An affirmative easement allows Frank to access Grayacre (dominant) by crossing Redacre (servient).
2. A negative easement allows the dominant owner to prevent the servient owner from doing something otherwise permissible on the servient land.
  - Example: A stream runs through Grayacre and Redacre. Grace can obtain a negative easement to prevent Frank from building a dam on Grayacre that will prevent the stream from flowing to Redacre.
3. An easement appurtenant to land benefits the holder in the physical use of the land. The easement is attached to the dominant land, not the holder.
  - Example: The easement that Frank holds in example is appurtenant to land because it is attached to the dominant land, Grayacre.
4. An easement in gross is attached to the holder, not the land. Servient land is burdened, but there is no dominant land.
  - Example: Frank obtains an easement to place a bulletin board on Grace’s land, Redacre. Redacre is servient, but there is no dominant land.
Creation of easements
1. Prescription
  1. A prescriptive easement is very similar to adverse possession (see Adverse Possession, below).
  2. To create an easement by prescription, the use of the land must be open and notorious, hostile, and continuous and uninterrupted for the statutory period. Some states may also require actual use.
2. Implication
  1. An easement by implication is not agreed upon expressly but may be inferred by a court due to existing use.
  2. An implied easement is created when two properties were once one and later divided, there is reasonable necessity, and previous use was apparent.
3. Necessity
  1. A court will grant an easement by necessity if there is a very strong showing of necessity. Unlike an easement by implication, there is no previous use.
  2. An easement by necessity is created by a conveyance of land and strict necessity. Essentially, the grantee has no access to a public road.
4. Grant
  1. An easement by grant is a deed allowing the grantee use of the property.
  2. An easement by grant must be in writing, signed by the grantor. It must manifest the intent to create an easement, describe the land, and identify the grantor and grantee.
Termination of easements: Easements may be terminated in the following ways.
1. Estoppel: The servient landowner changes position in reasonable reliance of the holder’s assurance that the easement will no longer be enforced.
2. Necessity: An easement created by necessity expires if there is no longer a necessity.
3. Destruction: If the servient land is destroyed, the easement is terminated.
4. Condemnation: If the servient land is condemned, the easement is terminated.
5. Release: The easement holder can release the easement in writing.
6. Abandonment: Through non-use, the holder demonstrates an intention not to use the easement again.
7. Merger: If one owner takes title to both the servient and dominant estates, the easement is terminated.
8. Prescription: The servient estate may terminate the easement through adverse possession.
Transfer of easements
1. Appurtenant easements pass automatically with the dominant tenement. They also pass automatically with the servient tenement unless the new owner is a bona fide purchaser without notice of the easement.
2. Easements in gross are not transferable unless they are for a commercial purpose.

Licenses

A license is the privilege to use another’s land for a specified purpose. A license is not an interest in land; therefore, a writing is not required. Tickets to a football game are an example of a license.

Profits

A profit is the right to enter the servient estate to remove minerals, timber, oil, etc. The rules of easements apply to profits.

Covenants

A covenant is a promise to do or not to do something that concerns the land. A negative or restrictive covenant is a promise to refrain from doing something; a positive or affirmative covenant is a promise to do something. A covenant can be enforced by bringing an action for damages.

Creation
1. A covenant has a burden and a benefit. The burden is the promise that must be performed; the benefit is the right to enforce the promise.
2. The original parties create the covenant. The issue that often arises with covenants is whether the successors are bound by it. Successors are the parties to whom the original parties convey land.
Does the burden run? To determine whether the successors are bound by the covenant, it must be determined whether the burden runs with the land. The following elements must be met:
1. The covenant must be in writing;
2. The original parties intended the covenant to run with the land;
3. The covenant must touch and concern (relate to) the land;
4. Horizontal privity must exist;
5. Vertical privity must exist; and
6. The successor must have notice of the covenant, including actual, record, inquiry, or imputed notice.
Privity
1. Horizontal privity: There must be a nexus between the original parties (e.g., landlord/tenant, grantor/grantee, or mortgagor/mortgagee).
2. Vertical privity: There must be a nexus between the original party and the successor. The method of conveyance is irrelevant, but the original party must have conveyed the entire estate for vertical privity to exist.
Does the benefit run? To determine whether the successors are bound by the covenant, it must be determined whether the benefit runs with the land. The following elements must be met:
1. The covenant must be in writing;
2. The original parties must have intended the benefit to run;
3. The covenant must touch and concern the land; and
4. There must be vertical privity.

Equitable Servitudes

An equitable servitude is similar to a covenant in that it is a promise concerning the land that binds the original parties and their successors. The difference is in the basis for relief: a party enforcing an equitable servitude will seek an injunction rather than damages.

Does the burden run? Equitable servitudes are analyzed in much the same way as covenants. Note that privity is not required. The following elements must be met for the burden to run:
1. The original promise must be in writing;
2. The original parties must have intended the promise to be enforceable;
3. The promise must touch and concern the land; and
4. The successors must have notice.
Implied equitable servitude
1. The implied equitable servitude is also known as the general or common scheme doctrine.
2. A court will imply an equitable servitude if a builder or developer has a common scheme or plan for the subdivision, thus enforcing a restriction on the successors.
  - Example: Builder buys land to create a subdivision for single-family homes. Builder sells 30 lots, and each deed, except for one, expressly provides that the lots are for single-family homes. Buyer’s deed did not contain the provision, and Buyer begins to build a four-unit apartment complex. The other owners seek an injunction. The court will imply an equitable servitude here because there was a common scheme or plan.
Does the benefit run? The following elements must be met for the benefit to run:
1. The promise must be in writing;
2. The original parties must have intended the promise to be enforceable; and
3. The promise must touch and concern the land.