Property II

Servitude

• Easement

  An easement is a non-possessory property right to use or to prevent prevent another from using property.

  Easements can be affirmative or negative:

  1. Affirmative Easement

     Affirmative easements confer upon the holder the right to make some limited affirmative use of land possessed by another, such as crossing over it to gain access to an adjacent tract of land.

  2. Negative Easement

     Negative easements limit another's use of his land, such as from obstructing light, air, or view, from blocking an artificial stream, or from removing a building's support.

     Five types of negative easements are tolerated:

     1. Flow of light or air
     2. Support of a building
     3. Flow of an artificial stream
     4. Views
     5. Conservative
        • Prevents all use forever

     A negative easement can go in perpetuity unless it's transformed into a restrictive covenant.

  An easement is not revocable by the property owner.

  An easement allows use according to the "rule of reason"—what is reasonable.

  There are three types of easements based on how they are created:

  • Express Easement
    • Easements are interests in land and thus generally subject to the statute of frauds.
    • An express easement can be created by grant or reservation.
      • An express easement by grant is created when the grantor executes and delivers to the grantee and instrument conveying the easement over the servient land.
      • An express easement by reservation is created when the grantor executes and delivers a deed conveying the servient land to a grantee, but he retains an easement over the servient land in himself.
  • Implied Easement

    • Easements Implied from Subdivision Plats

      If a parcel is subdivided with a plat (map) showing the lots and streets, it is implied that an easement to use the streets is created if such an easement is forgotten from the deed.

    • Implied Easement of Necessity

      An implied easement of necessity arises when the owner of one parcel of land conveys part of the land, landlocks the parcel conveyed or the parcel retained, and fails to create an express easement for a right of way to the landlocked parcel.

    • Implied Easement Based Upon Pre-existing Use

      Law of what constitutes an implied easement based upon pre-existing use varies greatly between states, but generally five factors are considered:

      1. whether the claimant is the grantor or the grantee of the dominant tract;
      2. the extent of necessity of the easement to the claimant;
      3. whether reciprocal benefits accrue to both the grantor and grantee;
      4. the manner in which the land was used prior to conveyance; and
      5. whether the prior use was or might have been known to the parties to the present litigation.

      Bob's Ready to Wear.

  • Prescriptive Easement

    Prescriptive easements have the same requirements as adverse possession, minus the requirement of exclusivity and instead of "possession," it is just "use."

    Adverse Possession

    The adverse possession doctrine shifts title of land from the true owner to an adverse possessor after the statutory period expires.

    For possession to ripen into title under adverse possession, most authorities hold that it must be:

    1. Actual Possession

       Actual possession is physically possessing the land as a true owner would. Mullis.

       Also known as constructive possession.

    2. Exclusive Possession
    3. Continuous Possession

       Continuous possession requires possessing the land as a true owner would without significant interruption.

       Successive possessors can "tack" their periods of possession. The "privity" required to tack their ownerships together requires the new owners to be the successors of the first.

    4. Hostile Possession

       Hostile possession is possession under a claim of right.

       Can be approached objectively or subjectively.

       • Objective Test
         • The objective approach focuses upon how an objective observer would evaluate whether the adverse possessor is exercising rights that are inconsistent with the rights held by the true owner.
       • Subjective tests:
         • Good Faith
           • Allows an adverse possessor who believes they have a bona fide right to the land to gain rights.
         • Intent to Claim
           • Allows an adverse possessor to acquire title if he had intent to claim land beyond his own.
    5. Open and Notorious Possession

       Open and notorious possession means it is visible and obvious to put a reasonable true owner on notice of an adverse claim.

    all for the full duration of the applicable statute of limitations.

• Profit

  A profit is a non-possessory right to go onto someone else's property and remove some part or product of that land.

  As the holder of a profit typically has an easement to enter the land he has a profit to, profits are governed by the law of easements to determine the rights of the parties.

• License

  Licenses are like easements, except licenses are revocable, while easements are not.

  Easement by Estoppel

  [A]n owner may be estopped to revoke the license when, with the knowledge of the owner, the licensee makes valuable improvements in reliance upon the continued existence of the license.

  Bob's Ready to Wear.

• Promissory Servitude

  Promissory servitudes are enforceable promises between a land owner and another.

  They are contracts, while easements are property rights.

  They are usually negative covenants, but some are affirmative covenants.

  Depending on the remedy sought for a breach of the promise, a promissory servitude is either called a real covenant or an equitable servitude:

  1. Real Covenant

     A real covenant is a promissory servitude that is enforceable by monetary damages.

  2. Equitable Servitude

     An equitable servitude is a promissory servitude that is enforceable by an injunction to comply with it.

  Common Interest Community

  A common interest community is an condominium, cooperative, or a subdivision with a homeowners' association.

  The CIC is usually administered by an owners' association, responsible for regulating the community's CCRs and often maintaining common assets.

  Covenants, Conditions, and Restrictions

  CCRs create reciprocal restrictions and obligations burdening each lot for the benefit of every other lot.

  CCRs are unreasonable if they are wholly arbitrary, violate fundamental public policy, or impose burdens on the use of the land that substantially outweigh the restriction's benefits to the development's residents.

  If a restriction is ambiguous, it will be interpreted in the least restrictive way.

  If a business acts in good faith with a reasonable investigation, courts will defer to them in accordance with the business judgment rule. If the business or CIC is acting unreasonably, the court will use their own reasonableness in the substituted judgment rule.

  Termination

  Servitudes can terminate through:

  • Written releases
  • Merger of the benefitted and burdened parcels
  • Prescription

    Prescription is the creation of a prescriptive easement.

    Prescriptive Easement

    Prescriptive easements have the same requirements as adverse possession, minus the requirement of exclusivity and instead of "possession," it is just "use."

    Adverse Possession

    The adverse possession doctrine shifts title of land from the true owner to an adverse possessor after the statutory period expires.

    For possession to ripen into title under adverse possession, most authorities hold that it must be:

    1. Actual Possession

       Actual possession is physically possessing the land as a true owner would. Mullis.

       Also known as constructive possession.

    2. Exclusive Possession
    3. Continuous Possession

       Continuous possession requires possessing the land as a true owner would without significant interruption.

       Successive possessors can "tack" their periods of possession. The "privity" required to tack their ownerships together requires the new owners to be the successors of the first.

    4. Hostile Possession

       Hostile possession is possession under a claim of right.

       Can be approached objectively or subjectively.

       • Objective Test
         • The objective approach focuses upon how an objective observer would evaluate whether the adverse possessor is exercising rights that are inconsistent with the rights held by the true owner.
       • Subjective tests:
         • Good Faith
           • Allows an adverse possessor who believes they have a bona fide right to the land to gain rights.
         • Intent to Claim
           • Allows an adverse possessor to acquire title if he had intent to claim land beyond his own.
    5. Open and Notorious Possession

       Open and notorious possession means it is visible and obvious to put a reasonable true owner on notice of an adverse claim.

    all for the full duration of the applicable statute of limitations.

  • Abandonment

    Mere nonuse of an easement is not enough to constitute abandonment.

    Abandonment of a restrictive servitude occurs when "violations are so great as to lead the mind of the average [person] to reasonably conclude that the restriction in question has been abandoned."

    • In applying this test, courts consider the "'number, nature, and severity of the then existing violation[s], any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.'"
    • Fink.
  • Public policy
    • Wholly arbitrary, violates policy, or far outweighs any benefit. Nahrstedt.
  • Changed Circumstances

    Changed circumstances terminates a restrictive servitude when it no longer benefits anyone, yet still imposes a burden.

    Alameda.

  To determine if a servitude is valid:

  1. Check for ambiguity
  2. Check for reasonableness
  3. Check for abandonment
  4. Check for estoppel