Servitudes: Express or Implied Agreements Regarding Use or Ownership of Land

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ServitudesExpress or Implied Agreements
Regarding Use or Ownership of Land
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Servitudes

• An unspeakable quagmire
• confounding intellectual experiences
• an area of the law full of rigid categories,
  silly distinctions, and unreconciled conflicts
  over basic values

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Servitudes

• Servitudes are express or implied land use
  agreements that give rights
• Authorize a nonowner to enter owners property
  for specific purpose.
• E.g., grant ingress egress rights or
• Promise by owner to do or not to do some act on
  own property.
• E.g., grant right for light and air to reach
  adjoining property

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Types of Servitudes

• Licenses
• Profits
• Easements
• Real covenants
• Equitable servitudes

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Appurtenant or In Gross?

• Appurtenant benefit a particular estate and is
  owned by whoever owns dominant estate
• E.g., right of way
• In gross not benefiting a particular estate,
  but instead personal
• E.g., right to dig gravel out of a plot to use in
  business located miles away.

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Dominant Servient

• Servient estate/tenement Property burdened by
  the servitude
• e.g., property with driveway for egress to
  adjoining lot)
• Dominant estate/tenement Property benefited by
  servitude
• e.g., property enjoying egress over the adjoining
  lot)

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Affirmative Negative

• Affirmative
• right to enter/use/affirmatively do something on
  someone elses land
• e.g., egress
• Negative
• right to restrict or control someone elses
  property
• e.g., right to limit number of stories on
  neighbors house

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Licenses

• A license is express or implied permission to
  enter someone elses property.
• E.g., you invite friends over to watch Bubba
  Ho-Tep you shop at a store or attend a movie.
• Licenses can be express or implied.
• Licenses generally are revocable at will of
  licensor (e.g., if you complain about the acting
  in Bubba Ho-Tep).
• Licenses are generally not transferable.

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Revocable Licenses

• Permission granted by property owner to allow
  another to enter her property temporarily and/or
  for specific purpose
• No writing is required
• Can be implied by circumstances

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Irrevocable Licenses

• Express
• Implied - AKA easements by estoppel
• Where licensor induces licensee to act in
  reasonable reliance on the license, licensor is
  estopped from revoking license.
• Where a licensee has entered anothers land
  pursuant to a license, and has reasonably relied
  on that access i.e., expended money or labor in
  reliance, license becomes irrevocable.
• License will continue for so long a time as the
  nature of it calls for.
• Majority doctrine not accepted everywhere

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Profits (a prendre)

• Profits are rights to remove objects from someone
  elses property (timber, coal, oil).
• A profit is a type of affirmative easement.

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Easements

• An easement is a right to use, or control the use
  of, someone elses property.
• Easements are generally irrevocable by grantor
• They can be abandoned or terminated, though.
• Easements are generally transferable during life
  (e.g., if O sells property that is dominant
  estate) and upon death.

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Creation of Easements

• Express
• Created by Estoppel
• Implied
• Easements implied by prior use
• Easements implied by necessity
• Prescriptive Easements

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Real Covenants and Equitable Servitudes

• Real covenants and equitable servitudes are
  promises made by a landowner to use or not to use
  own land in a particular way.
• The promises are enforceable by and against
  succeeding owners of the benefited land and
  burdened land. They run with the land and are
  not just personal contractual obligations.

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Covenants vs. Easements

• Covenants often create affirmative duty to do
  something on ones own land.
• E.g., duty to build a structure or pay a condo
  fee.
• Easements traditionally arent used to create
  affirmative duty to do something on ones own
  land, but instead to create a right to do
  something on someone elses land or prevent
  someone from doing so.

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Express Easements

• Easements created by an express agreement of the
  parties in writing.
• Where the agreement is not implied, easements
  must be in writing to be enforceable.
• Express easements are created by deed signed by
  grantor (either along with property affected by
  easement or in separate deed).
• Transfer of easements is analogous to sale of
  land and is treated as grant of interest in real
  property.

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Implied Easements

• Easements not created by express agreement but
  implied from circumstances, including
• Easements implied from prior use, and
• Easements by necessity
• Prescription (like adverse possession)

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Implied from Prior Use

• Where parcels of land were previously owned by
  one party
• One parcel was previously used for the benefit of
  the other parcel in a manner that was
• visible/apparent/obvious,
• continuous and
• permanent and
• The use is reasonably necessary/important need
  not be absolutely necessary

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Easements Implied by Necessity

• Where one party grants landlocked portion of a
  parcel to another party, owner of landlocked
  parcel may have an easement over the remaining
  land of grantor to have access to their plot.

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Running With the Land

• An easement runs with the land when
• any future owner of the dominant tenement is
  benefited by the easement, and
• any future owner of the servient tenement is
  burdened by the easement.
• E.g., my easement to use my neighbors driveway
  to get to the street.

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Burden Running with the Land

• If I sell my house, will the buyer still enjoy a
  right to use the driveway?
• I.e., will benefit of easement run with the land?
• If our neighbor sells her house, will the new
  owner be burdened by it?

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Will Burden of Easement Run with the Land?

• Easements burden future owners of servient
  (burdened) estate if
• Easement is in writing at the time of its
  creation
• Grantor who created easement intended for it to
  run with the land, and
• Subsequent purchaser of servient estate had
  notice of the easement at time of purchase
• Actual inquiry or constructive notice from
  chain of title

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Benefit Running with the Land

• What if I sell my property?
• Will buyer have right to use the driveway?
• Will benefit of easement run with the land?
• Generally depends on intent of grantor
• E.g., if deed from grantor recites that easement
  is intended to benefit future owners of the
  dominant tenement.

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Statute of Frauds

• No estate or interest in real property can be
  created except by an instrument in writing.
• Adopted in all jurisdictions.
• Easements are subject to statute of frauds.
• Exceptions to statute of frauds
• Easements created by estoppel
• Easements created by prescription
• Easements implied by prior use or by necessity