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Easements Covenants Running with the Land Real Covenants Equitable Servitudes Private Land Use Arrangements
Law of Servitude Easements are rights of way; giving beneficiary rights of property while preventing trespassing. Real Covenants, you can promise to do or not do things; forcible by law in that you get damages Equitable Servitudes is a covenant about land use that will be enforced in equity against
a successor to the burdened estate who acquired it with notice of the covenant.

All servitudes fall into 5 types: 1. (Affirmative Easement): A is given the right to enter upon Bs land 2. (Profit): A is given the right to enter upon Bs land and remove something attached to the land 3. (Easement; Negative Easement): A is given the right to enforce a restriction on the use of Bs land 4. (Affirmative Easement): A is given the right to require B to perform some act on Bs land 5. (Real Covenant/Equitable Servitude): A is given the right to require B to pay money for the upkeep of specified facilities There are many interests in land, but there are only these estates:

Bermans Note:
License is revocable Easement is not easily revocable There are equity concerns with being burdened by having to follow a restriction from a party that is not in privity. However, then again the recording statute may also prevent this concern.

A. Types of Easements
Positive Easements granted by a SERVIENT owner, gave a neighbor the right to enter or perform an act on the SERVIENT land. Negative Easements forbidding one landowner from doing something on his land that might harm a neighbor *An easement, being an interest in land, is within the Statute of Frauds usually requires a written instrument signed by the party to be bound thereby.

Appurtenant vs. Gross Easement [Easements Irrevocable]

Both easement types give easement owners the right to make some specific use (or in the case of a negative easement, restrict some particular use of land that they do not own


Appurtenant Easements (presumption for): Gives a right to whomever owns a

parcel of land that the easement benefits In other words, it benefits the owner of possessor of a particular parcel of land in his physical use or enjoyment of his property. This type of easement passes automatically with the property it benefits (Runs with the Land).

a. Two parcels of land will ALWAYS be involved 1. Dominant Tenement (Estate): The parcel that benefits from the easement (property that derives the benefit or benefited parcel) 2. Servient (serving the easement holder) Tenement (Estate): The property that is burdened by the easement whenever the dominant tenement (estate) is transferred to a new owner. The easement is incidental to the dominant tenement (estate).
i.e., A (dominant) has to cross Bs (serving) land in order to get to his

land A has an easement APPURTENANT to As DOMINANT tenement

b. Transfers automatically with the DOMINANT tenement REGARDLESS if it is even mentioned in the conveyance Benefit: RUNS WITH THE LAND 1. Person selling dominant estate loses her easement rights to the person buying the dominant estate
Easements may also be classified like estates (i.e., defeasible)

HOWEVER since they are not possessory they are categorized as interests in land.

Berman Note: An easement of the conventional type, one that is appurtenant to a dominant tenement. An incorporeal right, a servitude, attached to, and belonging with, some greater or superior right -- something annexed to another more worthy thing with which it passes as an incident, being incapable of existence separate and apart from the particular land to which it is annexed and to which it bears a relationship connected with the use of the dominant estate.

Exam Tip
The term in gross means only that the easement is not appurtenant. It does not mean that the easement is personal to the holder and cannot be assigned.
i. In Gross Easement [A personal easement]: Gives the right to some person without

regard to ownership of the land In other words, it benefits a person regardless of whether or not he/she owns any specific property or if he/she doesnt own any property at all its not attached to any parcel of land. Designed to give its holder 3

ONLY a personal or commercial gain, that is not related to the use and enjoyment of his land (DOES NOT Run with the Land).
Creates a personal right to use the SERVIENT estate, but that personal

right may be assigned if the parties so intended.

a. Servient Tenement (Estate): Tenement is burdened

b. BUT NO Dominant Tenement (Estate): since holder benefits a personal

In Gross Easements creates a personal right to use the SERVIENT estate,

but that personal right may be assigned if the parties so intended.

c. Not transferable to another holder UNLESS it is for commercial purposes (expressly assignable) Benefit DOES NOT RUN WITH THE LAND (in most states) 1. Personal Purposes: you want to use Bs pool, cant transfer that to Ozzy Oz Bourn 2. Commercial Purposes: Starkist Tuna has an easement to fish in Bs lake for its company

Easement Appurtenant Favored

If an instrument creating an easement is ambiguous, courts generally construe it as creating an easement appurtenant to the land rather than an easement in gross. Rationale: An appurtenant easement is favored for several reasons: 1. Intent The parties will usually have in mind that the easement will benefit a tract of land. 2. Land Value is Increased An easement appurtenant increases the value of the dominant land, presumably by more than it decreases the value of the servient land. To purchase an easement, the buyer will have to pay something more than the damage to the servient tenement in order to strike a bargain with the seller. Thus, an easement appurtenant increases the total value of the land. An easement in gross does not increase the value of any land, and it in fact decreases the total value of land by the amount of damage to the serivent tenement.

License v. Easement
Easements: Do not need a written document; easements are not easily revocable License: Could require a document, easily revocable

Lease v. Easement
Lease: Rent, time limited, larger rights or interests: Subject to the Statute of Frauds Easement: No time limit, the limitation of the rights or interests: NOT Subject to the Statute of Frauds This Chart Shows the Elements for the Creation of an Express Easement

Requirement/Characteristic Intent to Create

Discussion YES (generally - but note methods of creation that do not expressly reflect intent - e.g., estoppel and prescription) YES (exception - sometimes easements by prescription enforced without notice) YES for express easements; also may be created by estoppel, prescription (not negative easements), or implication (prior existing use or necessity) N/A N/A (appurtenance fulfills this function for burdened parcel) Specific performance or money damages

Notice (for burden to run)


Horizontal and Vertical Privity Touch and Concern


Four (4) Ways to Create an Affirmative Easement (P.I.N.G)

1. Express Writing Grants; Reservations Complies w/ Statute of Frauds:


Grant [The beneficiary is the grantee] Easement by Grant occurs when the
Grantor sells the property in one conveyance, and then grants an easement on the property to the benefit of the grantee. You can put it in the deed; if the intent is clear, then you granted an easement that Runs with the Land. Its an easement that endures for more than a year and it must be in writing that complies with the Statute of Frauds. i. ii. iii. iv. In an easement by GRANT, the beneficiary (dominant estate) is always the granteeor recipient of the grant. O (Lot 1) ---- > A by FSA; O (Easement) A (Dominant Tenement) If you are granting to the grantee, the benefit of the easement, then you are conveying it to them Easements by grants diminish the property owners/grantors property. The property owner who granted the easement may not exclude the grantee from the easement area.

Bermans Note:
The burdened estate in easement issues is called the servient estate The estate that has the use privilege is the dominant estate Once you have concluded it is an easement, you have said that: o This easement is a non-possessory right to property, and o You are also saying that one estate is burdened and one is not. You could put the transfer and the easement in one document.

Express Grant Easement Questions: 1. What kind of estate?

2. Who is the grantor and grantee? 3. What interest is reserved through the easement? 4. Who is the beneficiary? b. Reservation [Willard Exception to Common Law Rule] The Beneficiary is always the Grantor and may reserve an easement in favor of a 3rd Party. Reservations are done in the deed. What you dont transfer you necessarily keepProperty owner conveys everything except ____, thus they reserve/retain the easement. i. ii. iii. Beneficiary of the reservation is always the grantorbecause they are the ones granting the property, but retaining a certain portion of the property. This operates the same as O A (FSA); then A O (easement). If you are retaining a right, if you transferred out your property but you hold on to the right to do something on the land you just sold, you reserved something, thus creating an easement by reservation. The grantor, in conveying the property, reserves to himself, and anyone who subsequently owns his property, the right to cross the burdened/servient property. Reservations benefit the grantor. A grantor may reserve an easement in favor of a 3rd party (Willard)



Illustration of Express Easements (Grants & Reservations)

A-----DeedFSA Lot 2-----B (reserving an easement)Grantor is beneficiary

And then an immediate grant by B to A of an easement over Lot 2 B------Easement------A Grantee is beneficiary easement by grant * Easement by GRANT or RESERVATION ONE LOT will be burdened by the easement, it doesnt have an impact on alienability BUT it does impact marketability or deed covenant restrictions. If B sells to a 3rd party, post-closing issues will arise if he doesnt share the easement when dealing with GWD. Your promising property without encumbrances, BUT there are encumbrances.

Bermans Note: The very things that render title unmarketable are also the things that
the recording statute pertains too. The question is whether or not the party cares? o If Yes property question o If No something else Regrant: Conveyance from A to B, then B re-grants the easement back to A.

2. No Writing Since these are not in writing, they are not in compliance with the
Statute of Frauds, thus these are all exceptions that try to find instances that are enforceable (notwithstanding a failure to comply with SOF):

a. Easement by Estoppel (Holbrook v. Taylor) b. Easement by Implication (implied from existing use)
i. Easement Implied Prior Existing Use ii. Easement by Necessity c. Easement by prescription

Privity Of Estate effects anyone who is granted or takes possession of the property

Willard v. First Church of Christ, Scientist (1972) (Transferable Reservation)

Facts: Plaintiffs purchased property that a former owner had conveyed subject to an easement for automobile parking during church hours. Plaintiffs' deed did not mention the easement. The court reversed the judgment of the lower court and held that such a reservation vested the interest in the third party. Illustration of Facts: McGuigan --- FSA --- Peterson McGuigan worked an easement with Peterson so the church could continue to use the parking lot; this was in the deed itself Conveyance was subject to an easement for automobile parking during church hours for the benefit of the church on the property.such easement to run with the land only so long as the property for whose benefit the easement is given is used for church purposes

Peterson --- sold property --- Willard (who was unaware of the easement) Issue: Whether a grantor may, in deeding real property to one person, effectively reserve an interest/easement in the property to another? Yes. Common Law Rule: One cannot reserve an interest in a property to a stranger to the title. Cannot create an easement in a 3rd party because it violates the livery of seisin. You can only grant or reserve an interest in a property to a 3rd Party if it creates an express easement. Majority of modern courts continue to treat reserved easements in favor of 3rd Parties as VOID

A reservation is a provision in a deed creating some new servitude, which did not exist before as an independent interest. An exception is a provision in a deed that excludes from the grant some preexisting servitude on the land.

Exception Analysis:

* A developer provided, in its subdivision proposal, that certain easements for streets were reserved to its assigns and successors. Faced with a challenge to the easement based on the rule against reservation to a stranger, the court noted that it was not justified in resorting to technical refinement as to the meaning of "reservations" to defeat the manifest intent of the parties. It held that the complaining landowner was estopped to object to the easement because of his express consent to it. Under certain circumstances you can make certain restriction by reservation for a third party. However, the plaintiff DID NOT the deed; he should have known because the church used the parking before, and he did not record against it.

Holding: * The Supreme Court reversed the judgment of the trial court. Pointing out that the rule in question is based on feudal considerations and that it can operate to frustrate the grantor's intent and produce an inequitable result, the court declared that the common law rule is no longer the law in this state. * The Court further reasoned that balancing of equities and policy considerations might warrant application of the old common law rule to presently existing deeds in some cases, but that in the case before it the balance fell in favor of giving effect to the grantor's intent. * Judgment reversed in favor of defendants. The grantor, in deeding the property to plaintiff's seller had vested an interest in the property to defendant. Reasoning: * Majority (Minority Jurisdictions) primary objective in construing a conveyance is to try to give effect to the intent of the grantor grants are to be interpreted in the same way as other contracts. * Intent in this case is there; and was proven in Trial Court. Price was discounted because of the easement for the benefit of the church, to prove intent.


1. Let church grant FSA to Peterson, while reserving the use of the parking lot. 2. Have Peterson grant an easement to the church. (Why would this work? Forced by contract) 3. McGuigan could have granted the easement to Church. After the Church records, then McGuigan could convey the FSA to Peterson, but subject to the easement. Remember someone has a deed and someone just lost, what comes next? If Peterson had delivered a GWD, could Willard sue Peterson? Can Willard sue McGuigan?

McGuigan -----GWD-----Petersen ------GWD------- Willard Who suffered the loss? Willard The property is worth less than what Willard thought, can he do?

GWD: Identify the three warranties: covenant of seisin, covenant of no encumbrances, and covenant of quiet enjoyment After identifying the three warranties, can Willard sue Peterson? Yes.


Yes. with privity of estate Willard gets the benefit of the covenant of quiet enjoyment because it runs with the land. Willard CANNOT claim a breach of covenant of quiet enjoyment from either party because he has not been dispossessed. An easement is not dispossession; it is a right to use.

A. Easement by Estoppel (Holbrook v. Taylor)

Licenses Generally simply permission to enter land belonging to the licensor; licenses can be oral OR written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass. Are revocable at any time by the licensor unless the licensor makes the license irrevocable either expressly or by conduct. Examples: The plumber repairing a stopped-up drain, UPS delivering packing, and guests at a party all have licenses. Irrevocable License Courts that adhere to the rule that express easements must be in writing to satisfy the statute of frauds refuse to recognize the easement by estoppel 1. INSTEAD, they call it an irrevocable license 2. The same as estoppel except it only honors the SOF more Requires No Writing This is a license that becomes irrevocable

Holbrook v. Taylor (1976)


EXCEPTION TO STATUTE OF FRAUDS (Irrevocable License by Estoppel/Reliance)

An easement may be created by express written grant, by implication, by prescription, or by estoppel. An easement, such as a right of way, is created when the owner of a tenement to which the right is claimed to be appurtenant, or those under whom he claims title, have openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil, and with his knowledge and acquiescence, used a way over the lands of another for as much as 15 years. Where a license is not a bare, naked right of entry, BUT includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements thereon, the licensor may not revoke the license and restore his premises to their former condition after the licensee exercises the privilege given by the license and erects the improvements at considerable expense. Issue: 1. At what point does an oral license become irrevocable? 2. If a license is irrevocable then is it the same as an Easement? Rule: An exception to the statute of frauds by estoppel.
i. Easement by Estoppel is where a court finds that a person will be inconvenienced in some way if he was stopped from using the land he had been using ii. If the licensor created the impression that the licensee would not be revoked OR a reasonable licensee would so construe the situation a. Blacker Letter Law Requirements for Irrevocable License by Estoppel/Reliance 1. Owner of servient parcel permits another to use the land 2. The other party changes his position (e.g. making substantial improvements) 3. In reliance upon the permissive use; and 4. Reasonably foreseeable that the other might change his position

* This is not recognized in some jurisdictions where they take a strict view of the Statute of Frauds.
b. An impression that the licensor intended that a licensee would not be revoked OR where a reasonable licensee would construe the situation as such occurs when. 1. Writing does not satisfy the requirement of Statute of Frauds if deed wasnt explicit about easement


2. If easement is ORAL and not written & creates reliance; misrepresentation 3. When grantor conveys an easement over land the grantor does not own and later the grantor acquires the property 4. When O intends to grant an irrevocable license and its mistaken for an easement by making improvements on her own land

In Holbrook v. Taylor (D gave P neighboring landowners permission to use road on Ds property to get to Ps property, P built home on their property in reliance on the ability to continue using that road to get to their property a D (licensor) knew P was building home in reliance on his behavior (other party changed position); Court held he could not revoke and turned license into irrevocable license)
If license is accompanied by a right, the right to build

improvements (spend money), then you have an easement by estoppel. (Holbrook v. Taylor)
If you make improvements or other substantial changes to the

land, in reliance to the license, the grantor of the license cant just revoke the license. (Easement by estoppel again)
Easement by Estoppelit is very hard for the licensee (someone

given oral permission to use a piece of property), trying to claim the benefit of a license to claim reliance and seek an easement by estoppel if everything is in writing.

Easements by Prescription (think adverse possession for easement) Elements: 1. An actual entry resulting in 2. Exclusive use of the servient estate a. Exclusive means using the easement and no one else isnot that you HAVE exclusive use where you can evict all others off your propertysince cant with an easement. 3. That is hostile or adverse (as opposed to a permissive use) a. Majority: all use is presumed non permissive (similar to AP) i. All unlawful use is presumed to be hostiletrespass. We dont look at intent, it is an objective test. Do you have permission or do you not have permission? b. Minority: use is presumed to be permissive (Lost Grant Theory) i. Theory is you are neighbors; you permitted your neighbor to be on the property. So the presumption here is permission.


ii. If you are in a Lost Grant Jurisdiction, the burden of a person trying to claim easement by prescription is very large. iii. Under the Lost Grant Theory, the owner is presumed to have consented or acquiesced to the use (since there was a lost grant after all)but if use was made with consent, then no hostility; so AP must show that: 1. Use was not permissive (i.e. no consent) (if there was consent, then there is no hostility and AP loses) and; 2. True Owner Acquiesced: (a) no consent and no acquiescence (inconsistent w/ lost grant theory); or (2) no consent and acquiescence. 4. Open and Notorious, and 5. Continuous (without interruption) for the statutory period. a. How do you stop the clock? b. Majority: All use is presumed non permissive (similar to AP) i. You must effectively stop the use (an unsuccessful attempt to block only helps hostility argument) ii. To stop the clock, you actually have to bring the cause of action. c. Minority: Use is presumed to be permissive (lost grant theory) i. You can show more than the cause of action, you can show that you didnt acquiesce. Disproves Lost Grant Theory. ii. If you are acquiescing, that is consistent w/ a Lost Grant Jurisdictionmuch easier for a true owner.

Examine Hostility Requirement:

1. Majority all use is presumed non-permissive

How to Stop (breaks the continuity element):

TO must effectively stop the use (an unsuccessful attempt to block only helps hostility argument) TO must bring cause of action Any action that indicates that there is no consent; that TO is not acquiescing.

2. Minority Use is presumed to be permissive

Since AP must show that: 1. use was not permissive (i.e.: no consent) AND 2. true owner acquiesced

Real Covenants: contracts / mutual promises made by private parties and these are enforceable. Remedies for a breach of real covenants are damages. There is someone benefiting (dominant estate) and someone who is burdened by the promise (servient estate). Affirmative Easement: Promise to do something (i.e. build a wall)


Negative Easement: Promise NOT to do something (i.e. not to build) o Negative Easement: The right of the dominant tenant to stop the servient tenant from doing something on the servient estate. At common law: blocking windows; interfering with air flowing to your land in a defined channel; removing support for a building; interfering with the flow of water in an artificial stream.

Pure contact law here when it is between O (original owner) and A (1st grantor). We need Privity of Estate (when there is a transfer of title or possession of an estate or interest in property) to attach real covenants to subsequent remote parties.

Horizontal Privity (POC)

Vertical Privity
Promises made in leases are horizontal privity with each other the old English requirement for a promise to run is that there has to be horizontal privity. In a lease there is a relationship between the holder of the reversion and the holder of the possessory estate. When it involves remote grantees (D and C above), they need to prove that they are entitled to the benefit of the promise. Real Covenant Analysis: you need to prove that the original promise existed, that there was horizontal privity between the existing / original promise maker and the person entitled to the benefit of the promise and that there was the vertical privity between the person entitled to the benefit of the promise, and their assignee. You just dont enforce any Real Covenant/Promise, you need to make sure that there was some sort of legal relationship between the original promissor and the original promisee. Some sort of horizontal privity. Horizontal Privity: there has to be some kind of nexus with the land, something that touches and concerns the land


Running Covenants (Benefits and Burdens run if) 1. 2. 3. 4. Intent to Run (express or implied) Notice (in part because of recording statutes) Writing (subject to statute of frauds) Privity of Estate (horizontal and vertical privity)

Can you create an easement for a 3rd Party? Traditional Common Law Rule: No. Modern Rule: To enforce against a stranger, you need (1) an intent to enforce the promise against the stranger, and (2) that the promise relates to the property.

Always go through checklist BEFORE you approach a deed covenant question: Marketable Title? Pre Closing Deed Covenant Breached? Post Closing Recording Statute Question? Is the easement a restrictive covenant/equitable servitude valid to begin with? Test when there is a deed covenant breach: (Willard) 1. First determine if there was a promise? Did Defendant make the promise? Are you entitled to the benefit of the promise? (Vertical/Horizontal Privity Analysis) a. Can you sue for Breach of Covenant of Quiet Enjoyment? i. Future Covenant b. Can you sue for Breach of the Covenant of Seisin? i. Present Covenant (Run with the land? Rockefeller) c. Can you sue for Breach of Covenant of No Encumbrances? i. Present Covenant (Run with the land? Rockefeller) 2. Was that Promise Breached? a. Was it a future covenant breached? i. If it was a future covenant, then yes, they may sue. 1. Elements of Breach of the Covenant of Quiet Enjoyment a. Dispossession Constructive/Actual? ii. If no, then no cause of action. b. Was it a present covenant breached? i. Go through the Rockefeller split. 1. Yes, Rockefeller JurisdictionCovenant Runs and Plaintiff may Sue 2. No, Non Rockefeller JurisdictionNo Present Covenant Runs; Plaintiff can not sue.


Test to determine if a party was a bona fide purchaser: (recording statute question) any such prior conveyance is void notice of the prior conveyance.

Running Covenants (Burdens/Benefits run if): 1.) Intent to Run (Express or Implied) 2.) Notice (in part because of the recording statutes) 3.) Writing (subject to the Statute of Frauds) 4.) Privity of Estate *Horizontal Privity Has become very loose over time -LL/T Strict, only existed between the LL & T. -Mutual Privity Parties had mutual interests in the burdened estate, i.e.: easements -Instantaneous Privity Where we are now; having a promise that was contained in a conveyance any connection of interest between the original contracting parties will do. *Vertical Privity Exists when the successor has acquired the burdened or benefited estate in land held by the original party to the covenant harder to establish vertical privity for the burden of a covenant than it is for the benefit of that covenant.



(1) Grantee maintain garden in good repair AFFIRM COV (2) Grantee will not cover garden with building NEGATIVE COV (3) Tulks tenants have the right to use square Easement FBO 3rd Party

Questions: -- Who is suing whom for what? -- Does it matter if benefit runs? -- Does the burden run at law in UK? -- If it doesnt, is the covenant enforceable in equity? When you have a real covenant, it benefits one person on the property (increasing property value) and it burdens another persons property (decreases property value) ABs Favorite Cases (not necessarily the most important cases for the exam, but these are the cases that Berman personally finds particularly interesting)
1. 2. 3. 4. Ernst v. Conditt Kendall v. Pestana Lohmeyer v. Bower Frimberger


5. Rockafellor 6. Board of Ed v. Hughes 7. Howard v. Kunto 8. Gruen v. Gruen 9. Mahrenholz v. County Board 10. Willard v. First Church 11. Holbrook v. Taylor 12. Tulk v. Moxhay 13. Neponsit