An easement is a non-possessory property right to use or to prevent prevent another from using property.
Easements can be affirmative or negative:
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:
- Flow of light or air
- Support of a building
- Flow of an artificial stream
- 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.
Law of what constitutes an implied easement based upon pre-existing use varies greatly between states, but generally five factors are considered:
- whether the claimant is the grantor or the grantee of the dominant tract;
- the extent of necessity of the easement to the claimant;
- whether reciprocal benefits accrue to both the grantor and grantee;
- the manner in which the land was used prior to conveyance; and
- whether the prior use was or might have been known to the parties to the present litigation.
Promissory servitudes are enforceable promises between a land owner and another.
They are contracts, while easements are property rights.
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.
Servitudes can terminate through:
- Written releases
- Merger of the benefitted and burdened parcels
- Public policy
- Wholly arbitrary, violates policy, or far outweighs any benefit. Nahrstedt.