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SERVITUDES

Easements and Profits (Profits a prendre) – old form “incorporeal hereditaments”

-Servitudes give the right to USE of land, *not* to possession


-They are an interest in land – one of the sticks in the bundle

Easements allow some use of the land

Profits allow something to be severed from the land and removed


-profits depend on either express or implied easements to enter the land in order to get
whatever is being severed and removed. (called “secondary easements”).

Licenses: similar to both easements and profits, but really a *revocable* privilege - at the
will of the owner who granted them. -Easements and Profits are irrevocable rights. A
license is NOT an interest in land (really?)

EASEMENTS PROFITS LICENSES


Interest in land? Yes. Irrevocable Yes. Irrevocable No. Revocable
right right privilege (by
landowner grantor)
Purpose Allows the use of Allows something Both
land to be severed and
removed from land
Subject to Statutes Yes. Must be in Yes. Must be in No. May be granted
of Frauds? writing signed by writing signed by orally
grantor grantor
Why an easement or Factors: (1) For a Same as  Opposites of 
a profit and not a specified time, (2) Main factor is that if
license? for a designated its terminable at the
area, (3) whether landowner’s will,
substantial it’s a license.
consideration was
paid, (4) Does
holder have the right
make improvements
and repairs or
otherwise exercise
control

TERMINOLOGY

*Affirmative Easement: gives holder the right to do something on the grantor’s land.
*Negative Easement: holder has right to prevent the owner of the burdened land from
doing something. Burdens one parcel of land for the benefit of another.

*Appurtenant (either easement or profit): The benefits serve another parcel of land, and
effectively become part of the “bundle of rights” the owner of that land possesses. They
pass with the title. Easement examples: walkways, driveways, utility lines. Profits
appurtenant require that whatever is taken from the other’s land is used for some purpose
on the holders land (the benefited parcel).
1. Dominant Tenement: the benefited parcel
2. Servient Tenement: the burdened parcel
3. Words of inheritance mean ct more likely to find EorP appurtenant

*In Gross (either easement or profit): The benefits serve the holder personally without
regard to a parcel of land. Easement examples: utility line easements held by the utility
company, railroads, streets. Profit differs from appurtenant in that whatever is removed
does NOT have to be used on a specific parcel of land (therefore no dominant or
benefited parcel), and DOES NOT pass with title to land.
1. Servient Tenement language still applies to burdened parcel
2. Courts prefer easements to be appurtenant
3. Profits usually in gross unless specific language otherwise

*Easement by Prescription: Similar to adverse possession. If the prescriptive acts


continue for the period of the statute of limitations, the prescriber acquires rights that
correspond to the nature of use. Once created, it has all the same rights and implications
of an easement.
1. ROACH of USE instead of possession.

*Easement (or Profit) by Estoppel: AKA “Irrevocable License, License Irrevocable in


Equity, and Easements in Equity, Oral Easement” An oral license can become an
easement (except in N. Carolina) when:
1. Pursuant to the agreement the licensee expends money, property or labor that
2. The licensee would not otherwise have expended, AND
3. The licensor has reason to anticipate the expenditure.
*Exception to normal Statute of Frauds requirements for E’s and P’s
*Protects reliance interest

*Quasi Easement: exist when a landowner uses one part of his land for the benefit of
another part of his land.
1. Benefited portion = the quasi dominant tenement.
2. Burdened portion = the quasi servient tenement
3. When the owner conveys the QDT, an implied easement is created for the
grantor (provided the quasi easement was of “apparent, continuous and necessary
character).

*Implied Easements: created as per 3 above *or* Easements by Necessity situations.


-created when the court finds that the easement is necessary to the enjoyment of
the claimant’s (holder’s) land, AND that the necessity arose when the claimed
dominant parcel was severed from the claimed servient parcel.

*Reservation: A reservation is a provision in a deed creating some *new* servitude


which did not exist before as a previous interest.
*Exception: An exception is a provision in a deed that *excludes* from the grant some
*preexisting* servitude on the land.

REAL COVENANTS
-English common law – promises were only binding on the parties who made them. One
exception was landlord-tenant – those promises would be binding on subsequent tenants
or landlords with respect to the property they were the subject of. Enlgish common law
required privity otherwise, and refused to extend promises made between neighbors to
subsequent owners of the land.
AMERICAN REAL COVENANT: A promise respecting the use of land that runs with
the land at law.

Real Covenants can be a NEGATIVE PROMISE or an AFFIRMATIVE PROMISE.


-Covenants are not enforceable against an assignee who has no notice of it
-Covenants are created in conjunction with the transfer of some other interest in
land (book’s eg is deed conveying a fee simple), but not otherwise.
*this may require the use of a strawman

Example from the book

A: Promisee, benefit to Whiteacre -Horizontal privity- B promisor; burden on Blcacr


↑ ↑
Privity btwn promisee Privity btwn promisor
And assignee = Vertical and assignee =
Privity Vertical Privity
↓ ↓
D C
HORIZONTAL Privity: privity of estate btwn original covenanting parties
Old View: Horizontal privity required for the burden of a covenant to run at law
Horizontal privity NOT required for the benefit to run
New View: Rstmt 3rd- Horizontal privity NOT required for cov to run at law to successor
VERTICAL Privity: privity of estate between one of the covenanting parties and a
successor in interest

B promises A not to build a factory on Blackacre


*If A conveys WA to D, and B still owns BA (builds factory)
-Then D must allege that the benefit runs to D. Burden remains w/B as orig promisor
*If B conveys to C (builds factory) and A still owns WA
-Then A must allege that the burden runs to C.
*If A conveys to D and B conveys to C (C builds factory)
-Then D must allege that both the burden and the benefit run
***Test for running of the burden is more onerous than test for running of the benefit

-Burden Side: Covenants run with the ESTATE in land – not the land itself –
successors bound if and to the extent that they take the same type of estate
-Practical effect: Adverse Possesors not bound – vertical privity broken
because AP takes title to new estate by operation of law
-Benefit Side: Covenants run even if a different or lessor estate taken by succsor
-Traditional law – vertical privity intact in lessor/lessee and other lessor
estate situations
-Restatement 3rd View: No vertical privity required.
-Negative promises are treated as easements – owners/possessors of
burdened land bound no matter their interest or how they obtained
- owners and possessors of benefited land entitled to enforce
covenant
-Affirmative promises: Separate rules for lessees, life tenants and AdvPsr
plus distinction btwn benefits and burdens
LESSEES: benefits to repair, maintain or render service RUN
Benefits that lessee can enjoy w/o diminishing their value to
Lessor or overburdening obligor RUN
Burdens: Only affirmative cov’s not more reasonably done by
owner of the reversion run
LIFE TENANTS (non-trust): Benefits and Burdens RUN
-Life tenants liability for perf. of aff. cov. Limited by value of LE
ADV. PSSR’s: B4 gaining title – liable for burdens BUT gain
benefits only in limited circumstances: (1) Covs to repair, maintain
or render services OR (2) Benefit must be one that possessor can
enjoy w/o diminishing value to owner OR materially increasing
burden on the obligor

EQUITABLE SERVITUDES
-began as promise enforced in equity – became an interest in land
-but its origins in K law mean some K doctrines still apply
-Real Covenants attach to an estate in land – Equitable Servitudes attach to the land itself
-“sinks its tentacles into the soil”
-Equitable Servitude = Negative Easement
-TRADITIONAL difference – the relief sought. Real cov’s = damages /
EquiServ=injunction or specific performance

Restatement 3d: no more RealCov’s or EquiServs – all = “covenants running with the
land”

REAL COVENANTS:
-Must be created by a written instrument signed by covenantor.
-Are an interest in land, therefore within Statute of Frauds
-Signed by grantor only but containing promise by grantee? Enforceable. Grantee is
bound by the act of accepting the deed.
-CANNOT be created by estoppel, implication, or prescription.

EQUITABLE SERVITUDES
-an interest in land
-can be implied in equity under limited circumstances
-since it arises out of a promise, it cannot be obtained by prescription