#11263 - Easements And Real Covenants - Property

An easement is a grant of an interest in land that entitles a person to use land possessed by another.

Easements are affirmative and negative.

• Affirmative: The right to go onto the land of another.

• Negative: The right to prevent a neighbor from doing something with his land.

Easements are either appurtenant or in gross.

• Appurtenant: The easement is held for the benefit of one tenement (the dominant tenement) and burdens another (the servient tenement). The easement runs with the dominant tenement.

• In gross: The easement does not benefit the use of any land, it is merely a right to use the burdened land. It can be assigned if the parties intend.

The law favors easements appurtenant because they enhance the aggregate value of the land and because easements in gross clog title.

A profit is different from an easement; it is the right to take something off another’s land.

A license is mere permission to enter onto the land of another, and is revocable at will by the licensor.

• Some licenses are irrevocable. A license coupled with an interest in property is irrevocable, as is a license which causes the licensee to detrimentally rely (estoppel). This has the unfortunate effect of forcing the licensor to endure costs related to the license which he may not have bargained for initially. See: Holbrook v. Taylor.

Easements are subject to the Statute of Frauds, like all land conveyances, as well as the exceptions.

1. Creation of Easements

   1. Express Grant

Easements may be created by express grant, in an instrument conveying the easement from the burdened party to the benefited party. This is subject to the SoF.

• An easement is reserved when it is retained by the grantor when he executes a deed to a grantee. (CL: reservations weren’t strictly allowed, so the law developed regrant theory, the legal fiction that the grantor conveyed the land and the grantee granted the easement back to him in the same instrument).

• An easement is excepted when it is preserved by the sale of an already-burdened property to a new owner. (This is functionally identical to a reservation and the distinction is all but meaningless).

• At CL/majority, an easement cannot be reserved for a third party; but this can be dodged by conveying the land to the third party in one instrument and then from the third party to the grantee in another. A minority of states have done away with this rule.

An ambiguously-worded instrument which conveys an easement for a limited use or purpose or without clear boundaries still creates an easement. See Presault v. United States.

The law presumes that an easement is created in fee simple unless otherwise indicated.

1. Implication

Easements may be created by implication. An easement by implication is created by operation of law, and not a written instrument. This is an exception to the SoF.

Only two kinds of easements by implication are allowed: those based on an apparent existing use and those created by necessity. In order to create an easement by implication, the dominant and servient tracts must have been part of the same estate and the easement created when they were divided.

Apparent Existing Use: If prior to the division a use exists on the servient tract which is reasonably necessary to the enjoyment of the dominant tract, then an easement implied by existing use will be recognized.

• The use must have been prior to the division—called a quasi-easement, since one cannot have an easement in his own land. The easement must be appurtenant, never in gross.

• The use must have been apparent and discoverable by the grantee. (The grantee may be held to constructively notice the prior use since it could be inferred). See: Van Sandt v. Royster.

• The use must have been continuous.

• The easement must be a reasonable necessity to the enjoyment of the now-dominant tract.

Necessity: Created when division of the land deprives one tract of its access to a road or utility. Public policy requires such easements to ensure land doesn’t become “locked” and strictly unusable.

• The easement is implied only over the landlocking parcel, and only over that tract which actually blocks access to the road. The servient tenement must have been the keystone; having closed the last route to the road or utility available to the dominant tenement. See: Othen v. Rosier.

• No existing use is required for an easement by necessity.

• The owner of the servient parcel has the right to locate the easement.

• The easement terminates when it is no longer necessary.

  1. Prescription

Because an easement is not a possessory right but rather a right of use, the doctrine of AP did not originally apply to easements. But today, AP doctrine applies to easements under the theory that an adverse use may establish title to an easement.

• English Law found prescriptive easements under the legal fiction of the lost grant, where the benefited party had used the easement for sufficient time.

• American Law rejected the lost grant doctrine, and instead analyzed easement by prescription as an analogy to AP.

To prescribe an easement, the user must show the same elements as AP:

• Open and notorious use: The use must have been discoverable by the owner of the servient estate. If it could have been discovered by inspection, it is open and notorious.

• Adverse and under a claim of right: No color of title is necessary. But the use must be adverse, it may not be at the owner’s permission. If a use is expanded beyond the scope of its permission and appears to assert a claim of right, it may satisfy this requirement, though.

• Continuous and uninterrupted: The use need not be constant, only periodic to the extent you would expect for the particular type of use. However, in many jurisdictions, the use is interrupted when the owner protests, even by mailing a letter.

Prescriptive easements are subject to tacking, just as AP is.

Prescriptive easements may be acquired in gross.

1. Termination of Easements

An easement is extinguished when the dominant and servient estates are held by the same person.

An easement may be released by the dominant owner,

An easement may be abandoned by the dominant owner, provided that he manifests unequivocal intent to do so, such as by failing to maintain the easement, permitting it to be blocked by others, or establishing a substitute easement elsewhere. But it may not be extinguished by mere nonuse, no matter how long it goes unused.

An easement is extinguished if the dominant tenement is altered in such a way as to make the easement unusable for its intended purpose. If an easement is appurtenant to an estate and the dominant owner acquires adjacent land, the easement may be destroyed by injunction unless the dominant owner can show that the easement cannot be used to serve the non-dominant estate.

An easement by necessity expires if it is no longer necessary.

1. Negative Easements

A negative easement must be one of the four types recognized by early English law: easements for light, air, subjacent or lateral support, or for the flow of an artificial stream.

Negative easements cannot arise by prescription.

1. Real Covenants

Real covenants are promises relating to the use of land. They take the form of affirmative promises and negative promises.

A major concern of real covenants is determining how and when they pass between successive owners of land.

Typically, a real covenant burdens one property for the benefit of another.

At CL, a real covenant had to be created in writing under seal. It could never be prescribed or implied.

1. Law and Equity

A Π who sues to enforce a promise related to the land may seek either an injunction in equity or damages in law.

Real covenants run to successive owners at law. They give rise to personal liability only, and Π may see only money damages.

However, some real covenants also qualify as equitable servitudes. Equitable servitudes are enforceable in equity. It is enforceable by or against successors of the promisor and promisee.

1. Enforcement By and Against Assignees

Real covenants are treated as analogous to easements, with burdens and benefits. Easements always run to successive owners of the burdened/benefited tracts, but at CL RCs were not considered interests in land, only promises between parties. There are different rules for whether an RC runs.

For a burden to run at law:

• The parties must intend successors to be bound (evident from the language of the deed or contract);

• (Majority): There must be privity of estate between the original promisor and promisee (horizontal privity) and between the promisor and his assignee (vertical privity on the burdened side);

• The covenant must touch and concern the land;

• The promisor’s successor must have notice of the covenant.

For the benefit to run at law:

• The parties must intend successors to be bound;

• They may need to be in privity of estate;

• The benefit must touch and concern land owned by the promisee.

  1. Horizontal Privity

Traditionally, for a burden to run, HP is required.

HP is present where the original promisor and promisee are in privity of estate.

• In England, there is HP only between L and T, due to the poor recording system in England, so the only evidence of a covenant would be found in a written lease.

• In Massachusetts, the original parties must have mutual interest in the land. (e.g.: O owns lots 1 and 2, conveys lot 2 to A, reserves an easement on lot 2. O and A have a mutual interest in lot 2, and any burdens from RCs between O and A will run to A’s successors).

• Majority: HP exists...