Property II

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