Real Property 6: Servitudes

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  1. What are SEVEN forms of servitudes?
    1. Affirmative Easements

    2. Negative Easements

    3. License

    4. Profit

    5. Real Covenant

    6. Equitable Servitudes

    7. Reciprocal Negative Servitudes
  2. What is an EASEMENT?
    It is a grant of a nonpossessory property interest that entitles its holder to some form of USE OR ENJOYMENT of another's land (called the servient tenement)
  3. What is the difference between an AFFIRMATIVE easement and a NEGATIVE easement?
    Affirmative easement: the right to do something on servient land (most are affirmative).

    Negative easement: entitles its holder to PREVENT the servient landowner from doing something that would otherwise be admissible.
  4. What are the FOUR categories in which negative easements are recognized?




    Stream water from an artificial flow

    (minority of states: Scenice view)
  5. How are negative easements created?
    They can ONLY be created by an EXPRESS writing signed by the GRANTOR.

    There is NO natural or automatic right to a negative easement.
  6. What is an easement APPURTENANT?
    It benenfits its holder in his physical use or enjoyemnt of his property. TWO parcels of land are involved: DOMINANT tenement (which derives the benefit) and SERVIENT tenement (which bears the burden)
  7. What is an easement IN GROSS?
    It confers upon its holder only some PERSONAL or PECUNIARY advantage that is NOT RELATED to his use or enjoyment of the land.

    There is NO DOMINANT TENEMENT (only servient land that is burdened).

    e.g., right to place a billboard on another's lot; right to swim in another's pond; the utility company's righ to lay power lines on another's land.
  8. What is the TRANSFERABILITY of an easement?
    • Easement Appurtenant
    • Passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance. The burden also passes with the servient estate, UNLESS the new owner is a BONA FIDE PURCHASER WITHOUT NOTICE of the easement.

    • Easement in Gross
    • Not transferable UNLESS it is for COMMERCIAL purposes.
  9. How is an AFFIRMATIVE EASEMENT created?




  10. How is an affirmative easement created by GRANT?
    An easement to endure for MORE THAN 1 YEAR must be in a WRITING that complies with the formal elements of a DEED.

    The writing to evidence the easement is called a "deed of easement."
  11. How is an affirmative easement created by IMPLICATION?
    From implied existing use.

    The court may imply an easement on buyer's behalf (dominant tenement) if:

    1. the previous use was APPARENT; AND

    2. the parties EXPECTED that it would survive division because it is REASONABLY necessary to the dominant land's USE & ENJOYMENT
  12. How is an affirmative easement created by NECESSITY?
    If grantor conveys a portion of his land with NO WAY OUT, except over part of his remaining land.
  13. How is an affirmative easement created by PRESCRIPTION?
    By satisfying the elements of adverse possession:


    Continuous use for the statutory period

    Open and notorious use

    Actual use

    Hostile use (without the servient owner's consent)

    NY: appropriate statutory period is TEN YEARS
  14. What is the SCOPE of an easement?
    Set by the terms of the grant or conditions that created it
  15. Is unilateral expansion allowed in the use of an easement?

    e.g., if A grants B an easement to use A's private road to get to and from B's parcel Blackacre, and B subsequently purchases the adjacent Greenacre, B may NOT unilaterally expand the use of the easement to benefit Greenacre.
  16. How is an easement TERMINATED?
    (end cramp)

    Estoppel (servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced)

    Necessity (easements created by necessity expire as soon as the need ends - doesn't apply to easements created by express grant)

    Destruction of the servient land (other than through the willful conduct of the servient owner)

    Condemnation of the servient estate

    Release (written release, given by the easement holder to the servient owner)

    Abandonment (holder must demonstrate by physical action the intent to NEVER use the easement again)

    Merger doctrine (title to easement and title to the servient land become vested in the same person - a.k.a., "unity of ownership")

    Prescription (servient owner interferes with easement in accordance with adverse possession)
  17. What is a LICENSE?
    A mere privilege to end another's land for some delineated purpose.
  18. Do you need a writing to create a license?
    No. Licenses are not subject to the statute of frauds.
  19. How may a license be REVOKED?
    Freely, at the will of the licensor, UNLESS estoppel applies to bar revocation.

    Estoppel bars revocation ONLY when licensee has invested SUBSTANTIAL MONEY or LABOR or both in REASONABLE RELIANCE on license's continuation.
  20. What are some classic license cases?
    1. Tickets: they create freely revocable licenses.

    2. Oral easements: an oral easement that violates the statute of frauds creates a freely revocable license.
  21. What is a PROFIT?
    It entitles its holder to enter the servient land and take from it the soil or some substance of the soil (usually minerals, timber, or oil).
  22. What are the rules that apply to PROFITS?
    The same rules as applies to EASEMENTS.
  23. What is a COVENANT?
    A promise to do or not do something related to land.
  24. How is a covenant different from an easement?
    Unlike the easement, the covenant is not the grant of a property interest, but rather a CONTRACTUAL LIMITATION or promise regarding land.
  25. What is the difference between an AFFIRMATIVE covenant and a NEGATIVE covenant?
    Affirmative covenant: a promise to do something related to the land. (e.g., "I promise to maintain our common fence.")

    Negative ("restrictive") covenant: a promise to refrain from doing something related to the land (e.g., "I promise not to build for commercial purposes on my land.")
  26. How do you know whether a promise is a convenat or an equitable servitude?
    On the basis of the remedy the plaintiff seeks:

    When plaintiff seeks MONEY DAMAGES, construe as a covenant.

    When plaintiff seeks an INJUNCTION, construe as an equitable servitude.
  27. What are the parties to a covenant?
    one tract that is BENEFITTED by the promise and one tract that is BURDENED
  28. When will a covenant run with the land?
    When it is capable of binding successors. Both the benefit and the burden must run.
  29. What are the FIVE elements necessary for a burden to run with the land?

    Writing: the original promise between A & B was in writing

    Intent: the original parties intended that the covenant would run (courts are generous with this)

    Touch and concern the land: the promise must affect the parties' legal relations as LAND OWNERS, not simply as members of the community at large (homeowners' fees & covenants not to complete DO touch and conern the land)

    Horizontal and vertical privity: BOTH are needed

    Notice: successor to burdened the land had some form of notice of the promise when she took
    The nexus between the original parties.

    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 - its likely absence is the reason why the burden won't run.
    It is the nexus between the predecessor and the successor of the land.

    For there to be vertical privity, it simply requires some nonhostile nexus, such as contract, devise, or descent.

    The ONLY time that vertical privity will be absent is it A1 acquired her interest through adverse possession.
  32. What are the FOUR elements necessary for the BENEFIT to run?

    Writing: the original promise between A & B was in writing.

    Intent: the original parties intended that the benefit would run.

    Touch and concern: the promise affects the parties as landowners.

    Vertical privity: a nonhostile nexus between the benefitted tract's predecessor and successor.

    NOTE: Horizontal privity is NOT required for the benefit to run.
    A promise that equity will enforce against successors. It is accompanied by injunctive relief.
  34. How do you create an equitable servitude that will BIND successors?

    Writing: generally, but not always, the original promise was in writing.

    Intent: the original parties intended that the promise would be enforceable by and against assignees.

    Touch and concern: the promise affects the parties as landowners.

    Notice: the assigness of the burdened land had notice of the promise.

    NOTE: Privity is NOT required to bind successors.
    An implied promise that arises when the GENERAL or COMMON SCHEME DOCTRINE applies.

    e.g., A subdivides land into 50 lots. She sells lots 1-45 through deeds that contain covenants restricting use to residential purposes. A then sells remaining lots by a deed lacking such a covenant. B can be enjoined from building a convenience store on his lot if the two elements of the general or common scheme doctrine apply.

    Under the common scheme doctrine, the court will imply a RECIPROCAL NEGATIVE SERVITUDE to hold the unrestricted lot holder to the restrictive covenant.
  36. What are the TWO elements of the general or common scheme doctrine?
    1. When the sales begain, the subdivider had a GENERAL SCHEME of residential development, which included defendant's lot.

    2. The defendant lotholder had NOTICE of the promise contained in the prior deeds.
  37. What are the THREE forms of notice potentially imputed to a defendant in the context of a general or common scheme doctrine?

    Actual notice, meaning defendant had LITERAL knowledge of the promises in the earlier deeds.

    Inquiry notice, meaning the neighborhood conforms to the common restriction (the "lay of the land").

    Record notice, meaning the form of notice sometimes imputed to buyers on the basis of the publicly recorded documents.

    NY: A subsequent buyer does NOT have record notice of the contents of prior deeds transferred to others by a common grantor.
  38. What is an EQUITABLE DEFENSE to enforcment of an equitable servitude?
    Changed conditions. The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be SO PERVASIVE that the entire area or subdivision has changed.

    Mere pockets of LIMITED change is NEVER good enough.
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Real Property 6: Servitudes
2011-07-12 17:45:39
NY Bar Exam Handouts

MBE Real Property Part 6: Servitudes
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