The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, called a servient tenement.
Examples: privilege to lay utility lines on another's land, right of access across a tract of land
Either affirmative or negative:
Affirmative: most; the right to do something on servient land
Negative: entitles holder to prevent the servient landowner from doing something that would otherwise be permissible
four categories of negative easements: LASS
Stream water from artificial flow
(Scenic view, in minority of states)
Negative easements can only be created expressly, by writing signed by the grantor. There is no natural or automatic right to a negative easement.
appurtenant to land or held in gross
it benefits its holder in his physical use or enjoyment of his property; "it takes two" a dominant (derives benefit) and servient (bears the burden) tenement
In gross: confers upon its holder only some personal or pecuniary advantage. Servient land is burdened, no benefitted or dominant tenement.
examples - right to place a billboard on another's lot; fish or swim in another's pond; to lay power lines in another's land
Appurtenant easement passes automatically with the dominant tenement, regardless of mention in conveyance (so the burden passes as well, unless the new owner is a bona fide purchaser w/out notice)
An easement in gross is not transferable unless it is for commercial purposes
Creation of Affirmative Easement (four ways)
to endure for more than one year must be in a writing that complies with the formal elements of a deed (statute of frauds)
This is called a deed of easement.
aka easement implied from existing use
The previous use must be apparent and the parties expected that it would survive division b/c it is reasonably necessary to the dominant land's use and enjoyment.
landlocked setting: right of way will be implied by necessity if grantor conveyas a portion of his land w/out way out except over grantor's remaining land
An easement may be acquired by satisfying the elements of adverse possession, COAH
Continuous: use for statutory period
Open: and notorious use
Hostile: use (w/out servient owner's consent)
Permission defeats the acquisition of an easement by prescription. An easement by prescription requires that the use be hostile.
Determined by the terms of the grant or conditions creating it
END CRAMP (C in VA)
Estoppel: servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced
Necessity: expire as soon as the need ends (unless created by express grant)
Destruction: of the servient land, other than throught the willful conduct of the servient owner
Condemnation: of the servient estate by eminent domain
Release: written, given by the easement holder to the servient owner
Abandonment: by phsyical action, demonstrate the intent to never use the easement again
Merger: (aka unity of ownership) easement extinguished when title to the easement and title to servient land become vested in the same person. Later separation of title does not revive the easement.
Prescription: servient owner may extinguish easement by interfering with it in accordance with the elements of adverse possession (COAH)
Cessation: of purpose (in VA only) when original purpose no longer exists
A mere privilege to enter another's land for some delineated purpose.
Not subject to statute of frauds (no writing necessary)
Freely revocable unless estoppel applies to bar revocation
Classic example: Tickets (theater) create freely revocable licenses; neighbors talking by a fence creates revocable license rather than an easement
Estoppel applies to bar revocation when licensee has invested substantial money or labor (or both) in reasonable reliance on the license's continuation
VA distinction: irrevocable license is called equitable easement
entitles holder to enter the servient land and take from it, the soil, or some substance of the soil such as minerals, timber, oilshares all the rules of easements
promise to do or not to do something related to land. A contractual limitation regarding the land (not a property interest).
Restrictive covenants: promise to refrain from doing something related to land; eg, I promise not to build for commercial purposes.
Affirmative covenant: promise to do something related to land; eg, paint our common fence
Covenant vs. Equitable Servitude
based on the remedy P seeks
money damages = covenant (legal)
injunction = equitable servitude
Burden Run with the Land (WITHN)
one tract is burdened; the other is benefited
Does the burden run
Writing: the original promise b/t A and B must be written
Intent: the original parties must intend for the covenant to run (courts are generous here in finding intent)
Touch and cocern the land: must affect the parties' legal relations as landowners not simply as members of community at large. Covenants to pay money to be used in connection w/ the land (HOA) and covenants not to compete do touch and concern the land [VA: covenant not to compete does not touch and concern]
Horizontal and vertical privity: both needed for burden to run
horizontal privity refers to the nexus between the original parties A and B. It requires that they be in succession of estate, meaning that they were in a grantor/grantee or landlord/tenant or mortgagor/mortgagee relationship. Horizontal privity is hard to establish and its likley absence is why many burdens won't run.
Vertical privity refers to the nexus between A and A1. Requires some nonhostile nexus, such as, contract, devise, or descent. Only time absent is through adverse possession. Easier than horizontal.
Notice: A1 must be on notice of the promise when she takes.
Benefit Run with the Land (WITV)
does the benefit of A's promise to B run from B to B1?
Writing: original promise for A to B was in writing
Intent: original parites intended for benefit to run
Touch and Concern: promise affects the parties as landowners
Vertical privity: some nonhostile nexus b/t B and B1
*horizontal privity is not required for benefit to run; easier for benefits to run than burdens.
a promise that equity will enforce against successors. It is accompanied by injunctive relief
Writing: generally, but not always, original promise in writing
Intent: parties intended promise would bind successors
Touch and Concern: promise affects the parties as landowners
Notice: successors of the burdened land had notice of the promise
Privity is not Required to bind successors
Implied Equitable Servitude
General or Common Scheme Doctrine
Two elements of the general or common scheme doctrine:
1. When the sales began, the subdivider (A) had a general scheme of residential development including B's lot.
2. The defendant lotholder (B) had notice of the promise contained in the prior deeds
Three forms of notice potentially imputed to defendant: AIR
Actual notice: D had literal knowledge of promises in prior deeds
Inquiry notice: neighborhood conforms to the common restriction - lay of the land (constructive notice)
Record notice: publically-recorded documents (constructive notice)
Courts are split as to record notice. Some take the view that subsequent buyer is on notice of the contents of prior deeds transferred to others by a common grantor. The better view is that the subsequent buyer does NOT have record notice of the contents of those prior deeds to others by the common grantor (less burdensome to D's title searchers - more efficient)
Defenses to enforcement
Changed conditions must be so pervasive that the entire area has changed; mere pockets of limited change are never enough