EASEMENTS
What is an easement?
An easement is the right held by one person to make specific, limited use of land owned by another.
What is an express easement?
An express easement arises when it is affirmatively created by the parties in a writing that satisfies the requirements for a deed (SOF).
What are the elements of a real covenant and the remedy for violation?
A real covenant is a promise to prevent/restrict specific uses of land. It requires (1) writing, (2) intent to run with the land, (3) touch and concerns the land, (4) notice, and (5) horizontal and vertical privity. Violations of real covenants can provide money damages.
What is a license?
An oral promise to enter another's land. It is freely revocable.
What is a negative easement?
A negative easement prevents the owner from using land in particular ways to benefit the land of the holder of the easement (light, air, lateral support, stream waters). A negative easement must be a writing signed by the grantor.
What are the elements for an equitable servitude and the remedy for violation?
A promise to prevent/restrict specific uses of land. It requires (1) writing, (2) intent to run with the land, (3) touch and concerns the land, and (4) notice. Violations provide injunctive relief.
What is the difference between an easement appurtenant and an easement in gross?
An easement appurtenant is tied to the use of the land. An easement in gross benefits the holder personally.
How is an easement by prescription formed?
When an person's use is (1) actual (2) open & notorious (3) hostile, and (4) continuous -- all for the statutory period.
This type of land use promise arises when a developer creates a common scheme before the sale of parcels and will be enforced if there is actual or inquiry notice when not in the deeds of the parcels.
What is an implied reciprocal servitude?
What are the elements to create an implied easement by necessity?
Necessity - When (1) dominant and servient estates were under common ownership and (2) severance made the dominant estate virtually useless without the easement.
A court will look to these factors when determining at issues regarding increasing the scope of an easement.
What are reasonableness of use and original intent of the parties?
This element of a real covenant or equitable servitude is required for the benefit or burden to run.
What the elements to create an implied easement by prior use (or easement by implication)?
Implication - It is created when (1) dominant and servient estates were under common ownership (2) prior use benefitted one plot over another (3) the prior use was continuous, known, and apparent, and (4) the use is reasonably necessary to dominant estate's use and enjoyment.
Name up to three ways an easement can be terminated.
(1) Release in writing; (2) Merger of dominant and servient estates, (3) Severance, (4) Abandonment (affirmative act with intent to abandon), (5) Destruction, (6) Condemnation, (7) Prescription, (8) End of necessity, or (9) Estoppel
What is horizontal and vertical privity?
Horizontal privity - created when both parties share a mutual interest in the land at the time the covenant is created (some shared property interest apart from the covenant itself). Required for the burden to run not the benefit.
Vertical privity - refers to the relationship between the original party and the successor to the property interest. The burden of the covenant runs if the successor takes the original party's entire interest (ex. fee simple to fee simple) (strict vertical privity). The benefit of the covenant runs if the successor holds some portion of the property interest held by the original property (relaxed vertical privity).