Professional Documents
Culture Documents
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?)
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
*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).
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.
-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