Professional Documents
Culture Documents
Introduction
Licensea form of permissive entry in which a temporary invitation is extended to allow a nonowner to come onto a property. The owner waives their right to exclude the non-owners they
have invited in and simultaneously exercises their privilege to admit others to the property.
o Consent is a defense to trespass: A licensee who enters property held by another with
the owners permission does not commit a trespass unless she refuses to leave after
permission is revoked.
o Revocable at will: licenses as permissible entries to land are generally revocable by the
owner. It may be granted and it may be revoked.
Exceptions:
o Example: Inviting friends over for dinner (license); go to a grocery store (implied
license);
Easementsright of access to the property; rights to do specific acts on land owned by
someone else; a non-possessory right in someone elses property.
o Distinguish license vs. easement
Easements are intended to be permanent, or at least to last a specific period
Easements are not revocable by will of the owner of the land over which the
easement passes.
They do not grant full possession; only the right to perform specific acts.
o Distinguish easement v. lease
A lessee has possession and is generally entitled to do whatever she wants with
the property unless agreement provides to the contrary. The license is
irrevocable unless the contract is breached.
Rights short of possession involve entitlements to perform specific acts;
however, they may be intended to be permanent or irrevocable for a specified
period of time.
Easement may be granted by deed, which can be bought and sold.
Usually an easement is granted to owners of neighboring or nearby
land.
Types of Easements
o Affirmative EasementA right to do something on someone elses land.
o Negative or Restrictive Easementan agreement not to do something on your land.
Covenantscontractual agreements where parties agree to restrict the use of their own land
for the benefit of either their landlord or neighboring owners.
o Affirmative covenanta duty to do something on your own land to benefit other
owners
o Restrictive covenantlimits the uses to which land can be put
Servitudesvarious nonpossessory interests individuals can have belonging to someone else.
The main types of servitudes are easements and covenants.
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o
Servitudes that run with the landmost servitudes are of this type; rights in
someone elses land are attached to ownership of another parcel; the servitude is
appurtenant (attached to) to ownership of a dominant estate whose owner benefits
from use of the servitude on the servient estate (land burdened by the servitude).
Purchaserights encompassed by the servitude will continue to existence if the
parcels burdened or benefited by the easement are sold.
law of real covenantscontracting to limit or regulate land use
equitable servitudesthe equity courts response to technical and substantive limits
to the ability of owners to create and enforce real covenants.
Licenses
Easementsa non-possessory right in someone elses land; less than full possession or occupation;
Possessionoccupation of land with the intent to control it
usually easements encompass only specific entitlements, such as right to pass over land, remove
minerals, lumber, etc., right to use land for a specific purpose (recreation)
Implied Easements
Distinguish:
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b. Modern view: bases prescriptive easement on the idea that easements are interest in
property and that such claims are lost if not brought within a time period for suing to
protect property rights
Elements
a. All states
i. Use of property belonging to another
ii. Use be open and notorious or visible
iii. continuous and/or uninterrupted
iv. Last for the statutory period
b. Some states
i. Owner of the land acquiesce to the use
ii. Exclusive
iii. Under claim or right or ownership
c. Burden of proof: generally clear and convincing evidence, though some require only
preponderance of evidence
Usewhen someone uses someone elses property without permission, the question arises
whether the claimant has (1) exercised sufficient control to obtain title by adverse possession or
(2) has only engaged in specific acts that would result in a grant of an easement by prescription.
a. Enclosing land by fences or building structures on it is sufficient to demonstrate intent
to possess the property.
b. Use for passage; laying of utility lines; does not usually constitute possession and will
normally results in grant of prescriptive easement rather than title.
Hard case (driveway)
a. A driveway that encroaches on neighboring land,
i. If the owner uses the property for driveway purposes for a sufficiently long
time, she may be held to have acquired prescriptive easement to continue to
use it for that purpose,
ii. If she can demonstrate she treated the property as her own in a more general
sense, she may be granted title by adverse possession.
1. Usually requires substantial acts;
a. Example: Palazzolo v. Malba Estates (App. Div. 1986)
defendant built retaining wall on property one foot from border
and failed to stop plaintiff neighbor from paving the strip
between the wall and the rest of plaintiffs driveway.
2. Turns on whether the record title owner has been effectively
excluded from the property. Assertion of control vs. use of
anothers land.
Continuousthe use must continue over the course of the statutory period without significant
interruption.
a. Need not be constant.
b. Seasonal use is okay.
c. Occasional sporadic uses not likely to satisfy the requirement.
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d. The owner knew and acquiesced OR the use is so visible that acquiescence must be
presumed.
e. Subjective vs. objective tests for acquiescence
i. Arguments against subjective teststates of mind are notoriously hard to
prove; application unpredictable
ii. Arguments for subjective testan owner who did not know of adverse use did
not care enough to police the land and should be presume use was with implied
permission
iii. Arguments for objective testwhat a reasonable owner should have known is
likely to be more predictable and works to better clarify when an easement has
been created
iv. Generally subjective knowledge is not required
Exclusiveuser must have excluded the record owner.
a. Note: most courts do not include this element in the list required to establish a
prescriptive easement
i. Reasoning: it is ordinarily possible for both the owner and the easement
claimant to use the property.
b. Some courts do in include exclusivity: claimant use must be independent and not
contingent upon the enjoyment of a similar right by others.
i. Does not mean claimant is the only one using the easement. Claimant can
obtain easement even if owner/third party also uses it
ii. Two non-owners can have independent easements
Prescriptive easements acquired by the public
a. Third Restatementpublic may acquire easements in this manner.
i. Public use of roads, beaches
No prescriptive easement claims against the government
No negative prescriptive easements
a. Failure to act on your own land does not violate anyones rights
b. Ancient lights doctrine rejected: US courts have all rejected the English doctrine of
ancient lights where an landowner who has enjoyed unobstructed access to sunlight can
acquire an easement of light
i. Blocks development
ii. Require every landowner to obtain a waiver of the easement of view
Hard cases:
a. Negligence or bad faith
i. Warsaw c. Chicago Metallic Ceilings, Inc. (Cal. 1984)plaintiffs negligently built
large commercial building and left insufficient space to allow trucks to enter.
Trucks encroached on neighboring property.
ii. Court held because they did so without permission for the statutory period,
court granted a prescriptive easement
iii. Arguments against
1. wrong to reward bad faith
ii. Some states changed the traditional rule, allowing reservation of an easement
in a third party
2. Substantive Limitationscourts have traditionally limited the kinds of negative easements that
could be created. Four traditional categories of negative easements: light, air, lateral support,
and the flow of an artificial stream.
a. Reasons for limitation
i. It is hard or impossible to observe their existence
ii. If it was not limited, any use could presumably interfere with a neighbors
rights; taken to extreme, it could prevent any new uses of property which a
neighbor might object.
b. New negative easements
i. Conservation easements limit land development by restricting the use of land
for environmental purposes.
ii. Historic preservation prevents destruction or alteration of buildings that have
historical or architectural importance
iii. Solar easements protect access to sunlight for solar energy panels.
c. Negative easements and restrictive covenants
i. Limits on the creation of new easements (essentially just a land use restriction)
can be evaded by putting the restriction in the form of a covenant rather than
an easement.
1. Distinguish:
a. Negative easementsubject to limitations; generally
understood to be permanent; could be owned in gross
b. Restrictive covenantgoverned by changed conditions/undue
hardship doctrines; may be nullified; traditionally courts
generally refuse to recognize right to enforce a covenant in
gross
2. Third Restatement: would abolish distinction between negative
easements and restrictive covenants treating them as servitudes.
Abolish limits on easements and covenants. Allow servitudes to be
modified if changed conditions have made it impossible as a practical
matter to accomplish the easements purpose. Easements terminable if
modification is not practicable.
3. Running with the land (Appurtenant v. In Gross)
a. Appurtenant easementrun with the land, so that any benefit of the easement will
pass to any future owner of the dominant estate and the burden will be imposed on any
future owner of the servient estate
i. Requirements
1. Intended to run with the land
2. In writing
3. Owner of the servient estate purchased with notice of the easement
Covenants
Introduction
Real covenantsTraditionally real covenants were said to run with the land, binding the servient estate,
and benefitting the dominant estate if (1) the covenant was in writing, (2) the purchaser of the servient
estate was on notice of the covenant at the time of the purchase, (3) the original covenanting parties
intended both the burden and the benefit to run with the land, (4) the original contracting parties were
in privity of estate with each other and subsequent owners were in privity with the original contracting
parties, and (5) the covenant touched and concerned the land.
Equitable servitudescovenants were enforceable by injunctive relief if (1) the purchase of the servient
estate was on notice of the covenant at the time of acquisition, (2) the original covenanting parties
intended the covenant to run with the land, and (3) the covenant touched and concerned the land.
Omits horizontal and vertical privity requirements and substitutes a notice requirement
Formal Requirements
1. Writingthe statute of frauds requires covenants to be in writing to be enforceable against
subsequent owners. They are usually included in a deed, a lease, or deed of declaration. The
requirement of writing is satisfied if the original covenanting parties put it in writing.
Subsequent deeds do not to include the covenant.
a. recorded restrictions in the chain of title: the grantee is on constructive notice of
properly recorded restrictions in the chain of title and impliedly agrees to be bound by
such restrictions
b. Exceptions:
i. Doctrine of estoppel
1. The doctrine holds a person to a representation made or a position
assumed where otherwise inevitable consequences would result to
another who, having the right to do so under all of the circumstances of
the case, has in good faith relied thereon and been misled to his injury.
2. If the grantor made representations (including oral) to the effect that
restrictions exist, and the buyer relied on the representations, the
courts might enforce restrictions under the doctrine of estoppel.
c. Mapsometimes developers may refer to restrictions in a plat or map, but fail to record
a declaration that includes the restriction and also fail to include any restrictions in the
deeds themselves.
i. Majority view: most courts reluctant to enforce restrictions unless play clearly
indicates the extent and nature of the restriction. If the plat clearly refers to the
covenants, they will be enforceable against owners who take with notice of
them.
i. In some cases, the original covenanting parties may intend the burden to run
with the land but not the benefit, or vice versa. The covenantee can enforce
such a burden while it owns the land but the restriction will no longer apply
once the dominant estate is sold.
d. Three kinds of intent
i. Intent to enter no enforceable legal relationship at all
ii. Intent to create legal relations, but only to create a mere contract relationship
iii. Intent to bind the land
4. Privity of Estate
a. The original covenanting parties each had simultaneous interest in the land at the time
the covenant was created and that the burdens and benefits of the covenant would pass
to successors to those interests.
b. Two kinds of privity were required for a covenant to run with the land:
i. Horizontal privityrelation between the original covenanting parties
ii. Vertical privitythe relation between the original covenanting parties and their
successors in interest.
c. The purpose of servitudes law is to impose restrictions on some real property interests
intended to benefit the owners of other property interests. The idea of privity is that the
law will attach such burdens and benefits to ownership of particular parcels only when
the burden to the servient estate is justified by a compensating benefit to one or more
dominant estates.
d. Origins of privity concept (England)
i. Traditional contract law rights were not assignable to others. Promises were
personal.
ii. Courts developed an exception to this principle of nonassignability.
1. Privity of estatethe benefits of a contract were assignable if they
were conceived as being attached to an ownership interest in land
created by two parties who had simultaneous rights to that land. This
allows the burden and the benefit to run with the land.
2. Landmark case: Spencers case
a. An affirmative covenant was enforceable because (1) it was
intended to be binding on future tenants, (2) the covenant
touched and concerned the parties, (3) there was privity of
estate.
i. Privity of estate in this context was mutual privity. The
landlords and tenants had simultaneous interests in the
same parcel of land because ownership rights were
divided between the tenants present estate (term of
years) and the landlords future interest (reversion).
3. The question arose whether a covenant could be enforced if it were
contained in a deed rather than a lease. The problem here is that the
parties do not own simultaneous interests in the same piece of land. It
f.
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Substantive Requirements
1. Touch and Concerna covenant meets this test if it has something to do with the use of the
land and/or is connected with enjoyment of the land. (i.e. restrictions on land use)
a. May also require that the covenant affect the market value of the land by increasing the
value of the benefitted land.
b. Some courts hold that land use restriction touches and concerns the land if it affects the
parties interest as landowners such that benefits and burdens could not exist
independently of the parties ownership interests in real property.
c. Reasonableness: the dominant consideration seems to be the conclusion that the
obligation and/or benefit is the kind that should run with the land, binding and
benefiting future owners. Reasonableness, not esoteric concepts of property law,
should be the guiding inquiry into the validity of covenants at law.
i. Anticompetitive covenants and covenants that involved payments of money
were not enforced by courts. Under touch and concern doctrine, such covenants
do not relate to the land, but merely represented economic benefits.
ii. Covenants in gross also not enforced; did not touch or concern dominant
estate; restriction was not balanced by any compensating benefit to other land.
d. Third Restatementwould abolish the touch and concern requirement and provide
instead that covenants will run with the land unless they are unconscionable, without
rational justification, or otherwise violate public policy.
i. appurtenant benefits and burdens should run with the land when they are tied
to ownership or occupancy of land in the sense that they obligate the owner or
occupier of a particular unit or parcel in that persons capacity as owner or
occupier of land.
1. Appurtenant v. in grossa servitude is appurtenant rather than in
gross or personal only if it serves a purpose that would be more useful
to a successor to a property interest than it would be to the original
beneficiary.
e. Covenants to pay money
i. Homeowners association feesgenerally enforceable; strong relation to land
use: (1) benefits landowners, (2) increased value of the property
2. Enforcement in Gross
a. Intent to allow original covenantee to enforce in gross after transfercovenants that
touch and concern the use of land for the benefit of the owner of neighboring land are
presumed enforceable only by the current owner of the benefitted parcel.
i. Some courts may allow enforcement of the original covenantee if the parties to
the original covenant intended to allow enforcement after the transfer of the
dominant estate, but they are extremely reluctant to find such intent absent
explicit language to that effect.
b. Covenants whose benefits are initially held in gross
i. Traditionally the benefit of the covenant could not be held in gross even if the
parties intended to create such an arrangement.
1. A landowner may make an enforceable contract to restrict her own land
use, but the obligation will not pass to future possessors if the promise
does not benefit the owner of another parcel.
2. Cons: restricts free use and marketability
3. Pros: can be justified by sufficient compensating benefit
ii. Exceptions: homeowner associations, charities, governments.
c. Restatement (Third)would allow enforcement in gross only if the beneficiary of the
covenant has a legitimate interest in enforcing the covenant.
Implied Reciprocal Negative Servitudes
The law of equitable servitudes provided the legal basis for reciprocal enforcement of negative
servitudes among homeowners in subdivisions and later on, in condominium arrangements.
o It allowed (1) reciprocal enforcement when the deeds in question formally restricted
use of the land by the technical requirements of privity were not met and (2) it imposed
obligations on land purchasers to research titles both to parcels they were buying and
also neighboring parcels that had been owned and conveyed by the seller of the land.
If the developers in a subdivision placed uniform restrictions, courts might
conclude the developer had intended to create a general plan of restrictions.
There are enforceable.
Early v. later buyers
o Technical problems in mutual enforcement of covenants arise from early buyers against
later buyers.
Developer subdivides lots and sells them in succession. First buyer agrees to
use for residential purposes.
Later buyers can enforce the covenants in the deeds to earlier sold property as
successor owners of the dominant estate.
Earlier buyers cannot enforce the covenants contained in the deeds of later
buyers under real covenants law because at the time the later buyer agrees to
restrict, no privity of estate exists between the earlier buyer and the later buyer.
Grantor Covenant as solutionwhen the developer includes both a grantor covenant and a
grantee covenant, the privity problem goes away.
o Theoretically:
The later buyer can enforce the grantee covenant made by the earlier buyer
because the earlier buyers promise to the grantor was intended to benefit the
grantors remaining land.
The earlier buyer can enforce the grantor covenant against the grantors
(developers) successor, the later buyer if the deed was recorded and the later
buyer is on constructive notice of the promise between the grantor (developer)
and the earlier buyer.
Third party beneficiary doctrine allows contractual promises to be enforced by someone for
whose benefit a promise was made even though the promise was not made to that person.
o i.e. earlier buyer may sue as the third party beneficiary of a promise between the
grantor (developer) and the later buyer.
o In such a case, the promise is intended to benefit not only the developer and the
developers remaining land, but also lots previously sold in the same subdivision.
Rationale: courts refer to general plan or common scheme. If all the lots in
an area previously owned by a single grantor are similarly restricted, this
provides evidence that the developer intended the restrictions to be mutually
benefitting and reciprocally enforceable; the owner is restricted and entitle to
enforce the same restrictions against her neighbors.
Factors showing existence of general plan
Presence of restrictions in all or most deeds to property
Recorded map/plat
Presence of restrictions in the last deed
Observance by owners of similar development of their land and
conformity to the written restrictions
Language stating covenants are intended to run with the land
Recording of a declaration that covenants are intended to be mutually
enforceable
Supplements
o Oral statements
o Sales literature
Third Restatementabolishes horizontal privity requirement and provides that restrictions in
deeds intended to benefit other property will be mutually enforceable if the purchasers have
notice of them when they purchase.
Remedies
Modern view: is to interpret the intent of the grantor. This must be shown by express
language in the deed or declaration, but may be supplemented by extrinsic evidence
where necessary to interpret an ambiguity.
Third Restatement: suggests it is no longer acceptable that courts should err on the side
of unburdening property from restrictions.